Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 1 of 61 PageID #:18833
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`Exhibit D
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`TRADING TECH EXHIBIT 2012
`CQG & CQGT v. Trading Technologies
`CBM2015-00057
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`Page 1 of 61
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 2 of 61 PageID #:18834
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`
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`DECLARATION OF JOHN PHILLIP MELLOR, PH.D. IN SUPPORT OF CQG’S
`MOTION FOR SUMMARY JUDGMENT THAT THE
`’304 AND ’132 PATENTS ARE INVALID UNDER 35 U.S.C. § 112, ¶ 1
`FOR LACK OF WRITTEN DESCRIPTION
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`I.
`1.
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`Introduction
`I, John Phillip Mellor, Ph.D., submit this Declaration in Support of CQG(cid:146)s Motion for
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`Summary Judgment that the (cid:146)304 and (cid:146)132 patents Are Invalid Under 35 U.S.C. § 112, ¶ 1 for
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`Lack of Written Description.
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`II.
`2.
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`Background
`I am a resident of Terre Haute, Indiana and I have more than 18 years of professional
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`experience in computer science and software engineering. I hold a doctorate in electrical
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`engineering and computer science and presently work as a professor at Rose-Hulman Institute of
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`Technology ((cid:147)Rose-Hulman(cid:148)) in Computer Science and Software Engineering. In addition to
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`my academic research in computer science and programming, I have served as a computer
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`science and programming consultant and engineer to private industry, and an expert witness and
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`consultant in several patent cases. I also invented and patented a new system for transforming
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`graphical images. My experience is more fully detailed below and in my Curriculum Vitae
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`attached as Exhibit 1.
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`Civil Action No. 05-cv-4811
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`Judge Sharon Johnson Coleman
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`Magistrate Judge Sidney Schenkier
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`)))))))))
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`Trading Technologies International, Inc.,
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`Plaintiff,
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`v.
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`CQG, Inc. and CQGT, LLC,
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`Defendants.
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`III.
`3.
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`Scope of Assignment
`CQG Attorneys explained to me that Trading Technologies International, Inc. ((cid:147)TT(cid:148))
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`brought a lawsuit against CQG for infringement of U.S. Patent Nos. 6,766,304 ((cid:147)the (cid:146)304
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`patent(cid:148)) and 6,772,132 ((cid:147)the (cid:146)132 patent(cid:148)). I understand that the lawsuit is pending in the United
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`States District Court for the Northern District of Illinois, Eastern Division and was assigned case
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`number 05-cv-4811.
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`4.
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`CQG Attorneys explained that TT is interpreting the claim terms (cid:147)common static price
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`axis(cid:148) and (cid:147)static display of prices(cid:148) (collectively, the (cid:147)Static Limitation(cid:148)) of the independent
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`claims of the (cid:146)304 and (cid:146)132 patents as covering both a price column where all prices are static
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`and a price column where only some displayed prices levels in the column are static, and other
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`displayed price levels are dynamic. I will refer to TT(cid:146)s interpretation and/or application of the
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`patents in this manner as (cid:147)TT(cid:146)s Static Interpretation.(cid:148)
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`5.
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`CQG Attorneys also explained to me that the patent law requires the inventor to have
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`demonstrated at the time of the filing date of the patent application that he was in actual
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`possession of the invention as claimed or asserted against others. CQG Attorneys referred to this
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`requirement as the (cid:147)written description requirement,(cid:148) and explained that this requirement
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`prevents the inventor from claiming or asserting more than they actually invented as determined
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`by the patent disclosure and figures. CQG Attorneys asked me to determine whether the (cid:146)304
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`and (cid:146)132 patents disclose written description support for TT(cid:146)s Static Interpretation.
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`IV. Documents Reviewed in Forming my Opinions
`6.
`I formed my opinions based upon my knowledge, background, education, experience and
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`review of the following documents and things:
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`(a)
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`(b)
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`U.S. Patent No. 6,766,304 (Ex. 2).
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`U.S. Patent No. 6,772,132 (Ex. 3).
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`2
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`(c)
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`(d)
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`(e)
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`(f)
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`(g)
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`(h)
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`The Prosecution History for the (cid:146)304 patent (excerpts included in Ex. 4).
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`The Prosecution History associated with the Reexamination of the (cid:146)304
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`patent (excerpts included in Ex. 5).
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`The Prosecution History for the (cid:146)132 patent (excerpts included in Ex. 6).
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`The Prosecution History associated with the Reexamination of the (cid:146)132
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`patent (excerpts included in Ex. 7).
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`Provisional Patent Application No. 60/186,322 (Ex. 8).
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`A Memorandum and Opinion dated October 31, 2006 from Judge Moran
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`for Case No. 04-cv-5312 bearing Document #: 425 (Ex. 9). CQG
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`Attorneys explained to me that this Memorandum and Opinion represents
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`the (cid:147)Claim Construction Order(cid:148) from the related Trading Technologies v.
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`eSpeed case regarding the (cid:146)304 and (cid:146)132 patents. I will call this case the
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`eSpeed Case.
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`(i)
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`A Memorandum and Opinion dated February 21, 2007 from Judge Moran
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`for Case No. 05-cv-4811 bearing Document #: 120 (Ex. 10). CQG
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`Attorneys explained to me that this Memorandum and Opinion represents
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`the (cid:147)Supplemental Claim Construction Order(cid:148) from the eSpeed Case.
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`(j)
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`A Westlaw document dated June 20, 2007 bearing citation 507 F.Supp.2d
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`854 (Ex. 11). CQG Attorneys explained to me that this document
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`represents Judge Moran(cid:146)s decision on TT(cid:146)s motion for summary judgment
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`of infringement. I will call this document the (cid:147)eSpeed District Court
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`Decision(cid:148).
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`3
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`(k)
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`A Westlaw document dated February 25, 2010 bearing citation 595 F.3d
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`1340 (Ex. 12). CQG Attorneys explained to me that this document
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`represents the appellate decision issued by the United States Court of
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`Appeals for the Federal Circuit from the eSpeed Case regarding claim
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`construction, direct infringement, infringement under the doctrine of
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`equivalents, definiteness, priority date, and prior use. I will call this
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`document the eSpeed Federal Circuit Decision.
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`(l)
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`The Random House College Dictionary, Revised Edition having a
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`copyright date of 1980. Excerpts from the Random House College
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`Dictionary are attached as Ex. 13.
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`(m) Webster(cid:146)s Collegiate Thesaurus, having a copyright date of 1988.
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`Excerpts from Webster(cid:146)s Collegiate Thesaurus are attached as Ex. 14.
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`(n)
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`Electric Circuit Analysis, Third Edition (1999) by David E. Johnson,
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`Johnny R. Johnson, John L. Hilburn, Peter D. Scott. Excerpts from this
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`text are attached as Ex. 15.
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`(o) Microelectronic Circuits, Fourth Edition (1998) by Adel S. Sedra, Kenneth
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`C. Smith. Excerpts from this text are attached as Ex. 16.
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`(p)
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`(q)
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`Excerpts from TT(cid:146)s Opening Statement in the eSpeed Case (Ex. 17).
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`Excerpts from Brumfield testimony in the eSpeed Case (Ex. 18).
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`V.
`7.
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`Understanding of the Patent Law
`While I have some familiarity with general patent law principles from my professional
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`experiences, I do not consider myself an expert on patent law. So CQG Attorneys provided me
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`with additional guidance on legal principles relating to those laws and in particular a primer on
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`the component parts of a patent, claim construction, and the written description requirement.
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`4
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`8.
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`I understand that a patent is composed of four main parts: (1) an abstract of disclosure;
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`(2) one or more drawings or figures illustrating the invention, (3) a disclosure of the invention
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`(sometimes called the specification), and (4) the claims. The abstract is a concise statement of
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`the technical disclosure of the invention and generally identifies that which is new or improved
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`to the industry. Drawings or figures of the invention are required when necessary to understand
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`the invention. The disclosure is a textual description of the invention and the figures. The words
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`of the claims, as interpreted by the court, determine the scope of the invention. The words or
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`phrases in the claims are sometimes referred to as (cid:147)elements(cid:148) or (cid:147)limitations.(cid:148)
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`9.
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`I understand that when a patent application is filed with the U.S. Patent and Trademark
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`Office, it is examined by an Examiner. The Examiner is an employee of the U.S. Patent and
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`Trademark Office who reviews the application to determine if it meets all of the requirements for
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`patentability as determined by the patent law. I understand that the Examiner and patent
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`applicant often exchange written correspondence regarding whether the application satisfies the
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`requirements for patentability. If a patent application meets all of the requirements for
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`patentability, then it is allowed and ultimately issues as a patent. The collection of written
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`correspondence between the patent applicant and Examiner is sometimes called the prosecution
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`history or file wrapper.
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`10.
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`I understand that claim words are generally given their plain and ordinary meaning as
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`understood by a person of ordinary skill in the relevant art. I also understand that this ordinary
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`person should read the claims in view of the rest of the patent, including the disclosure and
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`figures. I understand that statements made by the patent applicant during prosecution as
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`recorded in the prosecution history may also be used to interpret the meaning of claim words.
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`Accordingly, I understand that the claims are generally construed based on their plain and
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`5
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`ordinary meaning as understood by a person of ordinary skill in the art and in view of the rest of
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`the patent and the prosecution history.
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`11.
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`I also understand that a court generally interprets the claims when the parties dispute the
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`meaning of the claim words (and therefore dispute the scope of the invention). Once a court
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`interprets a particular claim word, that construction is generally used by the parties and the court
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`to determine if the claims are valid and/or infringed.
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`12.
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`I understand that the written description requirement of the patent law seeks to prevent a
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`patent owner from overreaching his invention. During prosecution, the written description
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`requirement prevents the patent applicant from presenting claims or amending claims that cover
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`an invention different than the invention they actually possessed when the application was filed.
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`During litigation, the written description requirement could invalidate a patent where the claims
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`or the patent owner(cid:146)s interpretation of those claims overreach to cover an invention different than
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`the invention they actually possessed when the application was filed and disclosed to the public
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`in the patent application. And, these issues turn on whether the abstract, disclosure, and/or
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`drawings support the claims or asserted interpretation of the claims as determined by the person
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`of ordinary skill in the relevant art.
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`VI. Analysis
`A.
`Overview of the ’304 and ’132 Patents
`The United States Patent and Trademark Office issued the (cid:146)304 patent on July 20, 2004
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`13.
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`and the (cid:146)132 patent on August 3, 2004. I reviewed the (cid:146)304 and (cid:146)132 patents. The patents look
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`very similar. While I note that the patents have different claims, they have the same abstract,
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`disclosure, and figures with one exception. The disclosure of the (cid:146)304 patent includes a
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`statement indicating that it is a divisional application of Ser. No. 09/590,962. (Ex. 2 at col. 1, ll.
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`4-6 (CQG014190862).) Ser. No. 09/590,962 is the application number associated with the (cid:146)132
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`patent. (Ex. 2 at p. 1 (CQG014190854)).
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`14.
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`CQG Attorneys explained to me that a divisional application is an application that is filed
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`while a previously-filed application is still pending. CQG Attorneys also explained that a
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`divisional application and its related, previously-filed application should have the same abstract,
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`disclosure, and figures, but different claims. The explanation provided by CQG Attorneys is
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`consistent with my observation that the only notable difference between the (cid:146)304 and (cid:146)132
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`patents is the claims.
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`15.
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`The disclosures of both patents include a priority statement. The statements indicate that
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`the inventors claimed priority to U.S. Provisional Application, entitled (cid:147)Market Depth Display
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`Click Based Trading and Mercury Display(cid:148) filed March 2, 2000, and that the contents of that
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`provisional application were incorporated by reference. I understand that the provisional
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`application identified in the priority statement is associated with Application Serial Number
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`60/186,322. I will call it the (cid:147)Provisional Application.(cid:148)
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`16.
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`CQG Attorneys explained to me that patent applications may claim priority to a
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`provisional application. According to CQG Attorneys, a provisional application is not examined
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`by the U.S. Patent and Trademark Office for patentability requirements and is used by patent
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`applicants as a placeholder for an effective filing date. The provisional application allows patent
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`applicants to file a formal application within a year of the filing date of the provisional
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`application. If the patent applicant does not add (cid:147)new matter(cid:148) to the formal application, I
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`understand that the formal application may use the filing date of the provisional application as
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`the effective filing date of the formal application. CQG Attorneys explained that in order to use
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`the filing date of the provisional application, the formal application must be supported by the
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`provisional application.
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`B.
`The Independent Claims of the Patents
`The (cid:146)304 patent has two independent claims: claim 1 and claim 27. Claim 1 appears to
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`17.
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`be directed to a method for displaying market information relating to and facilitating trading of a
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`commodity being traded in an electronic exchange having an inside market with a highest bid
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`price and a lowest ask price on a graphical user interface. (Ex. 2 at col. 12, line 35-col. 13, line 3
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`(CQG014190867-68).) I copied and pasted the text of the entirety of claim 1 of the (cid:146)304 patent
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`below with instances of the term (cid:147)common static price axis(cid:148) highlighted. Claim 1 of the (cid:146)304
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`patent starts at column 12, line 35 and continues to column 13, line 3. To facilitate readability, I
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`pasted the three lines from column 13 below the last line of column 12.
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`(a)
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`Claim 1 of the (cid:146)304 patent:
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`Claim 27 of the (cid:146)304 patent appears to be directed to a computer readable medium having
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`18.
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`program code recorded thereon for execution on a computer. (Ex. 2 at col. 14, line 47-col. 15,
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`line 17 (CQG014190868-69).) Claims 1 and 27 of the (cid:146)304 patent are otherwise nearly identical.
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`Accordingly, I will refer to claim 1 as representative of the independent claims of the (cid:146)304
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`patent.
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`19.
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`The (cid:146)132 patent has three independent claims: claim 1, claim 8, and claim 14. Claim 1
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`appears to be directed to a method of placing a trade order for a commodity on an electronic
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`exchange having an inside market with a highest bid price and a lowest ask price, using a
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`graphical user interface and a user input device. (Ex. 3 at col. 12, ll. 2-5 (CQG014190889).) I
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`copied and pasted the text of the entirety of claim 1 of the (cid:146)132 patent below with instances of
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`the term (cid:147)static display of prices(cid:148) highlighted.
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`(a)
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`Claim 1 of the (cid:146)132 patent:
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`Claim 8 of the (cid:146)132 patent appears to be directed to a computer readable medium having
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`20.
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`program code recorded on it for execution on a computer. (Ex. 3 at col. 12, line 57-col. 13, line
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`17 (CQG014190889-90).) Claim 14 of the (cid:146)132 patent appears to be directed to a client system
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`for placing a trade order for a commodity on an electronic exchange. (Id. at col. 13, line 55-col.
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`14, line 14 (CQG014190890).) Claims 1, 8, and 14 of the (cid:146)132 patent are otherwise nearly
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`identical. Accordingly, I will refer to claim 1 as representative of the independent claims of the
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`(cid:146)132 patent.
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`C.
`Claim Construction of the Static Limitation
`CQG Attorneys provided me with copies of Judge Moran(cid:146)s Claim Construction Order
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`21.
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`and Supplemental Claim Construction Order from the eSpeed Case. (Exs. 9-10.) They also
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`provided me with copies of the eSpeed District Court Decision from Judge Moran and the
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`eSpeed Federal Circuit Decision. (Exs. 11-12.) I reviewed each of these documents and learned
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`that the Static Limitation has been interpreted by both Judge Moran and the Federal Circuit.
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`22.
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`CQG Attorneys informed me that the United States Court of Appeals for the Federal
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`Circuit ((cid:147)Federal Circuit(cid:148)) is the specialized appellate court that decides most patent appeals.
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`Regarding claim interpretation, CQG Attorneys informed me that the Federal Circuit reviews
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`district court claim constructions without any deference to the lower court. I understand this
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`means that the Federal Circuit(cid:146)s construction of the Static Limitation is more authoritative than
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`Judge Moran(cid:146)s construction of the Static Limitation.
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`23.
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`The eSpeed Federal Circuit Decision interpreted the (cid:147)static display of prices(cid:148) term from
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`the (cid:146)304 patent as: (cid:147)a line comprising price levels that do no change positions unless a manual
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`re-centering command is received and where the line of prices corresponds to at least one bid
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`value and one ask value.(cid:148) (Ex. 12 at p. 14 (CQG014202185), col. 2.) The Federal Circuit also
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`stated that (cid:147)[a] static condition(cid:151)requires permanency and thus, the price axis never changes
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`positions unless by manual re-centering or re-positioning.(cid:148) (Id.) The Federal Circuit also
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`interpreted
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`the claims
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`to require a manual re-centering command.
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` (Id. at p. 15
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`(CQG014202186), col. 2.)
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`24.
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`The eSpeed Federal Circuit Decision interpreted the (cid:147)static display of prices(cid:148) term from
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`the (cid:146)132 patent as: (cid:147)a display of prices comprising price levels that do not change positions
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`unless a manual re-centering command is received.(cid:148) Id. at p. 14 (CQG014202185), col. 1-2.
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`The Federal Circuit also stated that (cid:147)[a] static condition(cid:151)requires permanency and thus, the
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`price axis never changes positions unless by manual re-centering or re-positioning.(cid:148) Id. at p. 14
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`(CQG014202185), col. 2. The Federal Circuit also interpreted the claims to require a manual re-
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`centering command. Id. at p. 15 (CQG014202186), col. 2.
`D.
`Person of Ordinary Skill in the Relevant Art
`In my opinion, a person having ordinary skill in the relevant art ((cid:147)PHOSITA(cid:148)) is a person
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`25.
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`having (1) a bachelor(cid:146)s degree in computer science, computer engineering, or electrical
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`engineering or equivalent experience, (2) two years of experience programming GUIs, and (3)
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`general knowledge of trading and electronic trading. Under my definition, I possess more than
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`the level of ordinary skill in the art and can offer helpful testimony in this case regarding the
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`perspective of this hypothetical person. My analysis regarding the definition of the PHOSITA
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`and my qualifications to opine as to the perspective of the PHOSITA is in Sections VI(F) and
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`VI(G), respectively.
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`E.
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`Review of the ’304 and ’132 Patents and Prosecution Histories Regarding
`TT’s Static Interpretation
`In my opinion the (cid:146)132 and (cid:146)304 patents do not provide written description support for
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`26.
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`TT(cid:146)s Static Interpretation. In other words, the inventors at the time of the filing date were not in
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`possession of a graphical user interface having a price column where some displayed price levels
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`are static, and other displayed price levels are dynamic. Instead, the inventors were in possession
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`of a graphical user interface with only a single price column where all displayed prices in the
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`graphical user interface are static, other than in response to a manual re-centering command.
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`27.
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`Although CQG Attorneys informed me that the written description requirement does not
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`require a review of the prosecution histories, I reviewed the prosecution histories associated with
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`the patents to determine whether any statements by the inventors influenced my opinion. It is
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`my opinion that the prosecution histories confirm that there is no written description support for
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`TT(cid:146)s Static Interpretation.
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`1.
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`The Claims of the ’304 Patent Suggest That the Inventors Were Only
`in Possession of a Line Where All Displayed Prices Are “Static”
`I started my analysis with the (cid:146)304 patent because it issued first, and with the exception
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`28.
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`of its claims, the (cid:146)304 patent is identical to the (cid:146)132 patent. The claim term (cid:147)common static price
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`axis(cid:148) is representative of the Static Limitation in the (cid:146)304 patent. The plain and ordinary
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`meaning of the word (cid:147)axis(cid:148) is a line. This is confirmed by the contemporaneous dictionary
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`definition of the word (cid:147)axis.(cid:148)
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`(a)
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`From the Random House College Dictionary (1980):
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`A PHOSITA would agree that an axis is a line. With a strong background in mathematics
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`including Euclidean geometry, algebra, and calculus, the PHOSITA would have a preconceived
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`understanding of the term (cid:147)axis(cid:148) as a line from negative infinity to positive infinity. Anyone
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`who has taken high school algebra would recognize that a line, unlike a line segment, is
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`unbounded and goes on in both directions forever. A classic example of axes in algebra are the
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`x- and y-axes depicted below:
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 16 of 61 PageID #:18848
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`Collectively, both the dictionary definition, and the mathematical definition known to both high
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`school students and the PHOSITA suggests that the inventors were only in possession of a
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`graphical user interface that included all visible prices along the line or axis.
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`29.
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`The plain and ordinary meaning of the word (cid:147)common(cid:148) also suggests that the inventors
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`were only in possession of a graphical user interface having a universal static price axis or line.
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`In other words, all prices displayed along the axis are static. While the Claim Construction
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`Order suggests that the terms (cid:147)common,(cid:148) (cid:147)corresponding to,(cid:148) and (cid:147)aligned(cid:148) are synonyms and
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`mean (cid:147)in relationship with,(cid:148) this appears to be an oversight because substitution of the phrase (cid:147)in
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`relationship with(cid:148) for the terms (cid:147)common,(cid:148) and (cid:147)corresponding to,(cid:148) renders either (a) the claims
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`of the (cid:146)304 patent unreadable or (b) the term (cid:147)common(cid:148) redundant. For example, substituting
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`the phrase (cid:147)in relationship with(cid:148) for the term (cid:147)common(cid:148) and (cid:147)corresponding to(cid:148) in the phrase:
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`(a)
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`dynamically displaying a first indicator in one of a plurality of locations in
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`a bid display region, each location in the bid display region corresponding
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`to a price level along a common static price axis,
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 17 of 61 PageID #:18849
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`(b)
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`(c)
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`results in the following awkward claim element:
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`dynamically displaying a first indicator in one of a plurality of locations in
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`a bid display region, each location in the bid display region in relationship
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`with a price level along a in relationship with static price axis.
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`30.
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`The term (cid:147)aligned(cid:148) is only used in the (cid:146)132 patent and is not juxtaposed with the term
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`(cid:147)common.(cid:148) Substitution of (cid:147)in relationship with(cid:148) for the term (cid:147)aligned(cid:148) in the (cid:146)132 patent does
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`not create the same awkward claim element as the above substitution created in the (cid:146)304 patent.
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`Accordingly, the term (cid:147)in relationship with(cid:148) should only be considered a synonym of the terms
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`(cid:147)corresponding to(cid:148) and (cid:147)aligned.(cid:148)
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`31.
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`A PHOSITA would therefore expect that the term (cid:147)common(cid:148) as a modifier for the term
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`(cid:147)static price axis(cid:148) must have some unique meaning. And, a PHOSITA, with an appropriate
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`technical background, would necessarily understand that (cid:147)common(cid:148) means (cid:147)universal.(cid:148) This
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`understanding is confirmed by the contemporaneous dictionary definition of the word
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`(cid:147)common.(cid:148)
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`(a)
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`From the Random House College Dictionary (1980):
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 18 of 61 PageID #:18850
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`32.
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`Adjective Definitions 2, 4 and 6-14 are inapplicable here because they are directed to
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`among other things, a community or culture, notoriety, frequency, use, quality (e.g., average or
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`low quality), vulgarity, rank and distinction, anatomy, grammar, and mathematics. Definition 1
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`refers to belonging equally or being shared alike by two or more or all in question. This
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`definition is also inapplicable here because it would render redundant the (cid:147)corresponding to(cid:148)
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 19 of 61 PageID #:18851
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`term for the same reasons as described above. Definitions 3 and 5, in addition to the synonym
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`for Definition 5, confirm that (cid:147)common(cid:148) in the claims of the (cid:146)304 patent must mean universal.
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`33.
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`A contemporaneous thesaurus also supports this understanding. In particular, Webster(cid:146)s
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`Collegiate Thesaurus from 1988 confirms that (cid:147)common(cid:148) is synonymous with (cid:147)universal.(cid:148)
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 20 of 61 PageID #:18852
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`(a)
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`From Webster(cid:146)s Collegiate Thesaurus (1988):
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`34.
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`The layperson(cid:146)s definition of the term (cid:147)common(cid:148) is supported by the accepted
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`engineering definition of the same term. Because a PHOSITA would likely hold a bachelor(cid:146)s
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`degree in computer science, computer engineering, or electrical engineering, this person would
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`have a basic understanding of electrical circuits and electronics through their physics or
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 21 of 61 PageID #:18853
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`introductory sequence courses to electric circuits. And, contemporaneous course books in
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`electric circuits from 1998 and 1999 demonstrate that the ground terminal(cid:151)a feature of all
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`properly-designed electric circuits(cid:151)is often called the (cid:147)common ground(cid:148) because it is a
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`reference node against which voltages can be measured. The ground or common ground
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`terminal is a universal reference node, which in real-life systems may be grounded to the earth
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`itself. Excerpts from Johnson, Johnson, Hilburn, Scott, Electrical Circuit Analysis, Third Edition
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`(1999) (Ex. 15) and Sedra and Smith, Microelectronic Circuits, Fourth Edition (1998) (Ex. 16)
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`demonstrate these fundamental principles of electronics:
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`(a)
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`From Electrical Circuit Analysis (1999) (Ex. 15 at pp. 127-128):
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 22 of 61 PageID #:18854
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`(b)
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`From Microelectronic Circuits (1998) (Ex. 16 at p. 10):
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 23 of 61 PageID #:18855
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`(c)
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`From Microelectronic Circuits (1998) (Ex. 16 at p. 915):
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`35.
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`All together, the claims of the (cid:146)304 patent suggest that the inventors were only in
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`possession of a line of prices where all prices along the line are static.
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`2.
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`The Claims of the ’132 Patent Suggest That The Inventors Possessed a
`Static Column Comprising All Prices Visible in the Display
`The claim term (cid:147)static display of prices(cid:148) is representative of the Static Limitation in the
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`36.
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`(cid:146)132 patent. The claims require use of a graphical user interface and a user input device. (Ex. 3
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`at claim 1, col. 12, ll. 2-27 (CQG014190889).) Accordingly, the claim term (cid:147)static display of
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`prices(cid:148) simply suggests that the graphical user interface displays prices and that all visible prices
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`in the display are static. Without turning to the remainder of the claim or the remainder of the
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`patent, the PHOSITA would understand that the inventors were in possession of a graphical user
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`interface where all displayed prices were static.
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 24 of 61 PageID #:18856
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`3.
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`The Remainder of the ’304 and ’132 Patents Confirms That the
`Inventors Were Only in Possession of a Price Column Where All
`Displayed Prices Are Static
`Turning to the remainder of the patents, the abstract does not reference a common static
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`37.
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`price axis or a static display of prices. The disclosure and figures, however, demonstrate that the
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`inventors were only in possession of a graphical user interface where all prices in the price
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`column are static.
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`a.
`The Patents Only Use the Term “Price Column”
`The inventors referred to their alleged invention as the (cid:147)Mercury display.(cid:148) (Ex. 2 at col.
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`38.
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`7, ll. 19-26 (CQG014190865).) According to the inventors, the problems associated with the
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`prior art were overcome using the Mercury display, an example of which is depicted in Figure 3
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`and rendered below.
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 25 of 61 PageID #:18857
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`(a)
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`Ex. 2 at Fig. 3, (cid:146)304 Patent:
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`39. With one exception, the inventors did not use the phrase (cid:147)common static price axis(cid:148) or
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`(cid:147)static display of prices(cid:148) in describing the Mercury display.1 Instead, the inventors used the term
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`(cid:147)price column(cid:148) and the figures show price column 1005 (Fig. 3) and price column 1203 (Fig. 5).
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`(Ex. 2 at col. 7, ll. 48-67 (CQG014190865) (generally describing the invention as a static vertical
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`column of prices or price column, and referring to price column 1005 in Fig. 3); col. 10, ll. 38-39
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`(CQG014190866) (referring to price column 1203 in Fig. 5); Figs. 3 and 5 (CQG014190858 and
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`1 In one instance of the (cid:147)Summary of the Invention(cid:148) section of the patent, the inventors made
`passing reference to the term (cid:147)static display of prices.(cid:148) (Ex. 2 at col. 3, ll. 15-20
`(CQG014190863).)
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`Case: 1:05-cv-04811 Document #: 720-3 Filed: 03/17/14 Page 26 of 61 PageID #:1885