`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 1
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________________
`TD AMERITRADE HOLDING CORP., )
`TD AMERITRADE, INC., AND ) CBM2014-00131
`TD AMERITRADE ONLINE ) (Patent 7,533,056)
`HOLDINGS CORP., )
` ) CBM2014-00133
` Petitioner, ) (Patent 7,676,411)
` v. )
` ) CBM2014-00135
`TRADING TECHNOLOGIES ) (Patent 6,772,132)
`INTERNATIONAL, INC., )
` ) CBM2014-00137
` Patent Owner. ) (Patent 7,685,055)
`______________________________)
`
`
` Tuesday, April 28, 2015
` Videotaped Deposition of CHRISTOPHER THOMAS,
` taken by Petitioner at the offices of Finnegan
` Henderson, 901 New York Avenue, Northwest,
` Washington, D.C. before Randi J. Garcia,
` Registered Professional Reporter, and Notary
` Public in and for the District of Columbia,
` beginning at approximately 9:31 a.m., when were
` present on behalf of the respective parties:
`
`---------------------------------------------------
` DIGITAL EVIDENCE GROUP
` 1726 M Street NW, Suite 1010
` Washington, DC 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`TDA 1034
`CBM2014-00137
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 2
`
`A P P E A R A N C E S:
`
`FOR THE PETITIONER.
`Sterne, Kessler, Goldstein & Fox
`1100 New York Ave. NW
`Suite 600
`Washington, DC 20005
`By: Robert E. Sokohl, Esq.
`and Jonathan Strang, Esq.
`rsokohl-ptab@skgf.com
`
`FOR THE PATENT OWNER:
`Finnegan, Henderson, Farabow,
`Garrett & Dunner LLP
`Two Seaport Lane
`Boston, MA 02210-2001
`By: Rachel Emsley, Esq
`rachel.emsley@finnegan.com
`
`and
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`Digital Evidence Group C'rt 2015
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`202-232-0646
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`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`A P P E A R A N C E S(cont.):
`
`Page 3
`
`Finnegan, Henderson, Farabow,
`Garrett & Dunner LLP
`11955 Freedom Drive
`Reston, VA 20190-5675
`By: Erika H. Arner, Esq.
`and
`McDonnell Boehnen Hulbert & Berghoff LLP
`300 S Wacker Dr #3100, Chicago, IL 60606
`By: Michael D. Gannon, Esq.
`and
`Steven F. Borsand, Trading Technologies
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
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`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
` I N D E X
`
`Page 4
`
`Witness: CHRISTOPHER THOMAS
`EXAMINATION PAGE
` By Mr. Sokohl .......................5
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` (No exhibits marked)
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`Digital Evidence Group C'rt 2015
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`202-232-0646
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`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
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`Thereupon,
` CHRISTOPHER THOMAS
`after having been first duly sworn, was
`examined and testified as follows:
` EXAMINATION
`BY MR. SOKOHL:
` Q Good morning.
` A Morning.
` Q Would you please state your name for the
` record.
` A Christopher E. Thomas.
` Q And where do you currently live?
` A I live at 1919 West Greenleaf Avenue,
` Chicago, Illinois.
` Q Have you been deposed before?
` A Yes.
` Q How many times?
` A Maybe five or six.
` Q When was the last time you were deposed?
` A In either January or February this year.
` Q Do you remember -- why don't we go
` through the five or six times you said you were
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 6
` deposed. Just the names of the cases. Do you
` recall?
` A Well, two of them were TT patent
` related. It was the TT versus CQG case. That
` was the most recent one.
` Previous to that it was the TT versus
` ESpeed case. And the other times I have been
` deposed was as a fact witness in litigation.
` Q What was the general -- strike that.
` When you say "fact witness,"
` specifically what type of facts were you
` testifying about?
` A These cases were just -- they were
` litigation regarding various deals and trading
` just from where I had worked, and I happen to
` know some facts about the case.
` Q Very good.
` A Various parties, so to speak.
` Q So before we dive into a couple of
` ground rules, obviously you have been deposed
` before?
` A Yes.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 7
` Q You understand some of the rules. You
` need to speak your answer so the court reporter
` can take them down. Can't nod.
` A Yes.
` Q And is there any reason you can't give
` truthful testimony today?
` A No.
` Q And if you want to take a break at any
` time, just ask. All I ask is that you finish
` the answer to the question that is pending and
` we can take a break.
` A That is fine.
` Q Where are you currently employed?
` A I am one of the owners of a company
` called Maridunum Capital in Chicago.
` Q What do you do there at Maridunum
` Capital?
` A Design software and write software.
` Q What type of software?
` A Trading software.
` Q Do you also have a consulting company?
` A Yes.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 8
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` Q Is it Thomas Consulting Services?
` A That is correct.
` Q What do you do at Thomas Consulting
` Service?
` A Just expert witness consulting.
` Q Other than for Trading Technologies,
` have you been an expert witness for any other
` companies?
` A No.
` Q You are exclusively an expert for
` Trading Technologies?
` A At present.
` Q But previously you have never been an
` expert for any other company?
` A That is correct.
` Q I'm going to show you what has been
` marked -- I will go through one at a time CBM --
` Trading Technology Exhibit 2211.
` I am going to ask you whether or not you
` recognize this document.
` A Yes, I do.
` Q What is it?
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 9
` A It's a declaration that I made in one of
` these matters.
` Q And is that your signature on page 3?
` A Yes, it is.
` Q Is that your CV that is on pages 5
` through 9?
` A Yes, it appears to be.
` Q Is this, to the best of your knowledge,
` CV accurate as of today?
` A To the best of my knowledge, yes.
` Q And when did Trading Technologies --
` I'll rephrase.
` When were you contacted regarding
` preparing this declaration?
` MS. EMSLEY: Objection, privilege, to the
` extent it applies here.
` THE WITNESS: I was first contacted by --
` I was first contacted by the lawyers at
` Finnegan in January of this year.
`BY MR. SOKOHL:
` Q January of this year.
` How much time did you spend preparing
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 10
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` this declaration that has been marked
` Exhibit 2211?
` A Maybe a few hours.
` Q A few hours. And did you review any
` documents prior to putting your name on page 3
` of this document?
` A Yes.
` Q What documents did you review?
` A Well, I reviewed my Corrected Expert
` Report dated November 25th, 2013. I reviewed
` some preliminary responses in this case, a
` preliminary response in the case, '056. I think
` I looked at the patent. That's it.
` Q Did you look at the patent?
` A For the '056.
` Q '056.
` A Yes.
` Q Anything else that you reviewed?
` A I don't believe so.
` Q Did you review any prior art to the '056
` patent?
` A No.
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 11
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` Q What is your billing rate?
` A 500 an hour.
` Q Do you recall how much you charged them
` for this declaration?
` A No.
` Q When was the last time you developed an
` electronic trading system, you personally?
` A What?
` Q An electronic trading system.
` A What do you mean by -- that's a very
` big -- you know, it could be anything.
` Q Okay. You said earlier that you -- I
` don't want to mischaracterize what you said.
` You write software for trading systems, correct?
` A Correct.
` Q Let's explore that. What type of
` software do you write?
` A Currently?
` Q Currently.
` A Automated trading systems. At the
` moment they're artificial intelligence based for
` trading futures.
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 12
` Q I am going to hand you what has been
` marked as Trading Tech 2211.
` A Okay.
` Q Again, I will ask you to review this
` document.
` MS. EMSLEY: Do we want to put the
` proceeding numbers on the record?
` MR. SOKOHL: Yes.
` THE WITNESS: Okay.
` Q So, before we begin, there are three
` proceedings -- at least there are three
` declarations I am aware of. We are going to
` explore that in a second. It is proceeding
` CBM201400131, CBM201400133, and CBM201400135.
` Other than the declarations, I am going
` to be using a few documents, I believe, are the
` same across all three petitions. And I'd like
` to just stipulate that unless I state otherwise,
` it applies to all three petitions.
` MS. EMSLEY: The documents?
` MR. SOKOHL: The document, yes.
` MS. EMSLEY: That is fine.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 13
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`BY MR. SOKOHL:
` Q Now, in regard to the document I just
` handed you, which does relate to CBM201400133,
` have you seen this document before?
` A Yes.
` Q What is it?
` A It is a declaration that I filed in this
` proceeding.
` Q What patent does it relate to?
` A What's called the '411 patent.
` Q Is that your signature on page 3?
` A Yes.
` Q Again, that is your CV on pages 5
` through 10, Appendix A?
` A Yes.
` Q It is, to the best of your knowledge,
` accurate as of today?
` A To the best of my knowledge.
` Q And, again, how much time did you spend
` preparing this declaration for the '411 patent?
` A The same amount. Couple hours.
` Q Couple hours.
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 14
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` And what documents, if any, did you
` review prior to putting your signature on page 3
` of this 2211 document?
` A Well, again, my Corrected Expert Report
` dated November 25th, 2013. That's it.
` Q Any prior art? Did you review any prior
` art prior to putting your signature on page 3 of
` the 2211 document?
` A No.
` Q Did you review TD Ameritrade's Covered
` Business Method Petition prior to putting your
` signature on page 3 of the 2211 document?
` A I may have. I'm not sure. I may have.
` Q Not sure?
` A I may have.
` Q What would help refresh your
` recollection?
` A I have the document. I'm not sure
` whether I reviewed it prior to doing this. I
` may have.
` Q May have you reviewed it post signing
` the 2211 document?
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 15
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` A If I reviewed it, it would have been
` before.
` Q But you don't recall if you reviewed it?
` A No. I do have it.
` Q And I'd just like to go back to a prior
` document which is exhibit -- actually, you got
` me.
` So I will go back to a prior document
` and I will identify it even further, which is
` Exhibit 2211 in CBM201400131, which is the '056
` patent.
` MR. SOKOHL: Thank you, Counsel, for
` pointing that out.
` Q Did you review TD Ameritrade's -- I am
` going to use the expression CBM for covered
` business methods. Did you review TD
` Ameritrade's CBM petition prior to putting your
` signature on page 3 of the '056 petition?
` A Same as the other one. I may have. I'm
` not sure. I do have the document.
` Q You have the document but you don't
` recall if you read it?
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 16
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` A I am not sure.
` Q I'm going to hand you next what has been
` marked as Trading Tech Exhibit, again, 2211
` CBM201400135.
` MS. ARNER: The numbering is not
` intentional.
`BY MR. SOKOHL:
` Q I will ask you to review this.
` MR. SOKOHL: And I will also provide a
` note to the court reporter, if I speak too
` quickly, just hit me. I tend to do that.
` Q Do you recognize this document?
` A Yes.
` Q What is it?
` A It is a declaration I filed in the '135
` case.
` Q Is that your signature on page 3?
` A Yes. Yes, it is.
` Q And what documents, if any, did you
` review prior to signing this document?
` A My Corrected Expert Report dated
` November 25, 2013, '132 patent.
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 17
` Q Did you review any prior art prior to
` signing, putting your signature on page 3 of the
` '132 Christopher Thomas declaration?
` A No.
` Q So we reviewed three declarations; one
` for the '132 patent; one for the '056 patent and
` one for the '411 patent.
` A Correct.
` Q Were you asked to prepare a declaration
` in regard to the '055 patent? Do you know what
` that is? Let me just mark this.
` Actually, it has been marked. Let me
` hand it to you. TDA1001CBM U.S. Patent
` 7,865,055.
` A Yes.
` Q Do you recognize this patent?
` A I have seen it before.
` Q Were you asked to provide a declaration
` in regard to the '055 patent?
` A I don't believe so.
` MR. SOKOHL: Just for the record, we are
` not here to cross examine on '055, right,
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 18
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` Counsel?
` MS. EMSLEY: Correct.
` Q Very good. We will put this aside.
` I am going to hand you what has been
` marked TDA1001 or CBM U.S. Patent 7,533,056,
` also known as the '056 patent.
` Have you seen this patent before?
` A Yes.
` Q When?
` A Several years ago.
` Q When was the last time you reviewed this
` document?
` A A few weeks ago, maybe.
` Q And did you read this entire patent
` prior to putting your signature on your
` declaration?
` A Probably didn't read it cover to cover.
` Q What did you read?
` A Probably the background on the claims.
` Q Nothing in between?
` A I'm not sure.
` Q It was only a few weeks ago, correct?
`
`www.DigitalEvidenceGroup.com
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`Digital Evidence Group C'rt 2015
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`202-232-0646
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`4/28/2015
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`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
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`Page 19
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` A Right.
` Q You don't recall if you actually
` reviewed this patent from cover to cover? Or is
` it your testimony you did not read it from cover
` to cover?
` A I probably didn't do it from cover to
` cover.
` Q And how does this patent, '056 patent
` relate to the '132 patent and the '304 patent,
` which was the subject of your Corrected Expert
` Report dated November 25th, 2013?
` MS. EMSLEY: Objection, scope.
` Q You can answer.
` A I haven't been asked to opine on that,
` so...
` Q And so your expert report referenced in
` your declaration, the Corrected Expert Report of
` Christopher Thomas dated and signed on
` November 25th, 2013, do you recall what patents
` that related to?
` A I do.
` Q Which patents?
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
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`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
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`Page 20
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` A '132 and '304.
` Q And I will ask again: How does the '056
` patent relate to the '132 and '304?
` A I have not -- I have not studied the
` relationship between the two.
` Q Okay. Do you realize that the '056
` patent is not in the same family as '132 and
` '304 patents?
` A Yes.
` Q Do you recognize that the claimed
` invention '056 is different than the invention
` claimed in '132?
` MS. EMSLEY: Object to form. Scope.
` THE WITNESS: It's not the same invention.
`BY MR. SOKOHL:
` Q And do you recognize that the claimed
` invention '056 is different from the invention
` claimed in the '304 patent?
` MS. EMSLEY: Same objection for scope.
` THE WITNESS: It's not the same invention.
`BY MR. SOKOHL:
` Q And can you tell us how at all they
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
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`
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`4/28/2015
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`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
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`Page 21
` relate, that the invention in the '056 to the
` invention in the '304 patent, for example?
` A Like I said, I haven't been asked to do
` that, so, you know, sitting here right now, I
` don't think I can do that.
` Q And could you tell us how the invention
` in the '056 relates to the '132 patent -- the
` invention in the '132 patent. Let me restate
` that.
` Could you tell us how the invention in
` '056 relates to the alleged invention in the
` '132 patent?
` MS. EMSLEY: Objection for scope.
` THE WITNESS: The same answer. I haven't
` been asked to do that. And, you know, I don't
` think I can do that sitting here right now.
`BY MR. SOKOHL:
` Q So you don't know one way or the other
` whether they do relate, whether the '056 patent
` relates in any way to the '132 patent?
` A Well, all they all relate to electronic
` trading.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 22
` Q But other than that, could you tell me
` in any way how they relate, how the '056 relates
` to the '132 as to the invention claim?
` A Like I said, I haven't been asked to do
` that.
` Q And the same question: Could you tell
` me in any way how the invention in the '056
` relates to the '304 patent?
` A Same answer. I haven't been asked to do
` it.
` Q We didn't do this at the beginning. I
` think it's a good idea.
` MR. SOKOHL: Thank you, Counsel. We
` didn't identify counsel on the record. So
` let's do that. Robert Sokohl for TD
` Ameritrade, et al. With me is John Strang.
` MS. EMSLEY: For the record, I am Rachel
` Emsley, counsel for TT. And this is Erika
` Arner.
` And we have in the room with us.
` MR. BORSAND: Steve Borsand from Trading
` Technologies.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 23
` MR. GANNON: And Mike Gannon for Trading
` Technologies.
` MR. SOKOHL: Ms. Emsley, are you of record
` in any of these cases?
` MS. EMSLEY: I am not of record in these
` cases.
` MR. SOKOHL: By cases I mean...
` MS. ARNER: I am lead counsel of record on
` all of the cases.
` MR. SOKOHL: Thank you.
`BY MR. SOKOHL:
` Q Let me hand you what has been marked
` TDA1001 and CBM U.S. Patent number 7,676,411.
` Do you recognize this patent?
` A I have seen it.
` Q Have you reviewed this patent?
` A Not for several years.
` Q So last time you reviewed this patent
` was several years ago?
` A That is correct.
` Q So you didn't review this patent, the
` '411 patent, before signing your name on page 3
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 24
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` of your declaration?
` A Correct.
` Q Do you know how the '411 patent relates
` to the '132 patent?
` A It's the same family.
` Q Do you know how the '411 patent relates
` to the '304 patent?
` A Same family.
` Q I am handing you what has been marked as
` TDA1001 CBM of 6,772,132.
` MS. EMSLEY: Thank you.
` MR. SOKOHL: Mr. Borsand, would you like a
` copy of the document? I have a copy if you
` would like.
` Q Do you recognize this document?
` A Yes.
` Q What is it?
` A It is what is referred to as the '132
` patent.
` Q When was the last time you reviewed this
` patent?
` A Probably a month ago, something like
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
`
`Page 25
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` that.
` Q And you did review this document prior
` to putting your name on page 3 of your
` declaration, correct?
` A Yes.
` Q Did you read it from cover to cover or
` did you just -- how did you review this
` document?
` A At some point I read this from cover to
` cover, because I have seen this for many years.
` Most recently, I believe it's just
` background in claims.
` Q Can we turn back now to the three
` declarations? I am going to refer to these by
` the patent number. I think that is the easiest
` way. Let's refer to the '132 declaration.
` A Okay.
` Q If you just turn to page 2, and look at
` paragraph 4. Who -- did you decide the
` paragraphs that would be referenced from your
` Corrected Expert Report that are listed in
` paragraph 4 of your declaration?
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
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`Page 26
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` MS. EMSLEY: Objection, privilege.
` MR. SOKOHL: That's not privileged.
` THE WITNESS: Do I answer?
` MR. SOKOHL: I asked him if he decided --
` it's his expert report. I am asking whether it
` was his decision to put paragraphs 15, 19
` through 31 and 33 into paragraph 4 of this
` declaration.
` You can answer that question.
` MS. EMSLEY: If you -- you can answer.
` THE WITNESS: No.
`BY MR. SOKOHL:
` Q And do you know who did decide?
` A No.
` Q I will ask you the same question for the
` declaration for the '411 patent, paragraph 4
` again. Did you decide to list paragraphs 15, 19
` through 31 and 33 in paragraph 4 of your
` declaration?
` A No.
` Q Do you know who decided to put those
` paragraphs into paragraph 4?
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
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`Page 27
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` A No.
` Q And in regard to the '056 declaration,
` again, paragraph 4, did you decide to put
` paragraphs 19 through 31 of your Corrected
` Expert Report -- reference paragraphs 19 through
` 31 of your Corrected Expert Report into
` paragraph 4 of this document?
` A No.
` Q Do you know who decided to put reference
` paragraphs 19 through 31 in paragraph 4?
` A No.
` Q Thank you. Earlier you referenced a
` reply. Prior to putting your signature on page
` 3 of these three declarations, I want to go each
` individual one. I will just set up the
` question. You had referenced some type of
` reply, and I just want to explore that.
` In regard to the '056 patent, do you
` recall if you reviewed Trading Technologies
` reply to TD Ameritrade's petition prior to
` putting your signature on page 3 of your
` declaration?
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
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`Page 28
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` A A preliminary response.
` Q So you reviewed a preliminary response?
` A Right.
` Q The same question for '411. Did you
` review the preliminary response prior to signing
` the '132 declaration? I'm sorry, I confused the
` two. I apologize. Let me restate that.
` Did you review the preliminary --
` Trading Technologies preliminary response prior
` to signing the '132 declaration?
` A I believe so, yes.
` Q And for '056, did you review Trading
` Technologies preliminary reply to the '056
` patent or CBM prior to signing your declaration?
` A I believe so.
` Q Does the '411 patent relate to trading
` of commodities?
` A It has been a long time since I reviewed
` that.
` Q As you sit here today, you can't tell me
` whether or not the '411 patent relates to
` trading of commodities?
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
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`Page 29
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` A What do you mean by commodities?
` Q How do you understand that term to be
` used?
` A Well, it can be used differently in some
` patents. Some of these patents a commodity is
` any instrument traded on an exchange. But to
` other people a commodity can be something
` commonly referred to as maybe what is traded on
` a futures exchange. But in some of these
` patents the commodity could be shares and
` equities or something.
` Q Let's take the definition of commodity
` as any instrument traded on an exchange. Does
` the '411 patent relate to trading of
` commodities?
` MS. EMSLEY: Objection to scope.
` THE WITNESS: Like I said, I can read it.
` I can read it and go through the patent and
` then tell you.
` Q Well, let's look at Claim 1 of the '411
` patent.
` MS. EMSLEY: Objection to scope.
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
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`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
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`Page 30
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` THE WITNESS: Claim 1.
` MS. EMSLEY: I think we need to understand
` where this line of questioning is going.
` MR. SOKOHL: It's a really simple
` question. He put a declaration in the '411. I
` just want to know if he agrees the '411 relates
` to the trading of commodities. It is a simple
` question.
` MS. EMSLEY: He is not being offered on
` claim construction.
` MR. SOKOHL: No, he is not. He is being
` offered as an expert on certain issues relating
` to the '411 patent. I am just trying to
` explore whether he even knows what the '411
` patent relates to.
` MS. EMSLEY: Generally, speaking?
` MR. SOKOHL: It's a pretty general
` question so far. Yes.
` Do you know, sir?
` THE WITNESS: It states, yes. For method
` of displaying market information relating to
` and facilitating trading of a commodity being
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`
`
`4/28/2015
`
`TD Ameritrade Holding Corp., et al. v. Trading Technologies International, Inc.
`
`Christopher Thomas
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`Page 31
` traded on an electronic exchange. So yes.
` Q So, yes? It relates to the trading of
` commodities?
` A Correct.
` Q What about the '056 patent?
` A The reason I am looking is, I mean, I
` don't memorize things.
` Q Uh-huh.
` A Here we go.
` Q My question, just for the record is,
` does the '056 -- does Claim 1 of the '056
` patent, is it directed to trading of
` commodities?
` A Claim 1 does not include the word
` commodity.
` Q How would you characterize Claim 1?
` MS. EMSLEY: Objection to scope.
` MR. SOKOHL: It is well within the scope
` of his declaration.
` MS. ARNER: Claim construction of Claim 1?
` MR. SOKOHL: It's not claim construction.
` I am asking him what Claim 1 means. As an
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