`__________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`IBG LLC, INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC., TRADESTATION TECHNOLOGIES,
`INC., and IBFX, INC.,
`
`Petitioner
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`CBM2015-00161 (U.S. Patent 6,766,304 B2)1
`CBM2015-00172 (U.S. Patent No. 7,783,556 B1) 2
`CBM2015-00179 (U.S. Patent No. 7,533,056 B2)
`_________________
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`DECLARATION OF DAN R. OLSEN, JR.
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`1 Case CBM2016-00035 has been joined with this proceeding.
`2 Case CBM2016-00040 has been joined with this proceeding.
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`Page 1 of 125
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`TRADING TECH EXHIBIT 2174
`TRADESTATION v TRADING TECH
`CBM2015-00172
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`
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`Case CBMZOIS-00161
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`U.S. Patent 6,766,304 B2
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`1. Qualifications
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`1.
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`I, Dan R. Olsen Jr., Ph.D., am a resident of Orem, Utah and have more
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`than 35 years of experience in computer science and human-computer interaction
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`(HCI). I hold a doctorate in Computing and Information from the University of
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`Pennsylvania. For 3 1/2 years I was an Assistant Professor of Computer Science at
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`Arizona State University. I then served for 30 years on the faculty of Brigham
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`Young University retiring as a full professor in 2015. During that time at BYU, I
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`also served as the chair of the Department of Computer Science. I took leave from
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`BYU in 1996 to become the founding director of the Human Computer Interaction
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`Institute in the School of Computer Science at Carnegie Mellon University. I
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`returned to BYU in 1998. I am currently the CEO of a software startup in
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`educational technology (SparxTeq, Inc).
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`2.
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`During the course of my academic career, I authored over 70 papers in
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`the field of computer science. The topics on which I have published papers are:
`
`0
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`User Interface Management Systems
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`Syntactic representations of user interfaces
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`Multi—user interaction across networks
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`Induction of interaction behavior from pictures
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`Novel interaction techniques using speech and laser pointers
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`Interactive machine learning
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`U.S. Patent 6,766,304 B2
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`Interactive robotics
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`Interactive television
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`3.
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`I currently hold 4 patents in human-computer interaction. I have
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`authored 3 textbooks on the techniques of software design for human-computer
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`interaction.
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`4.
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`I have had extensive involvement in professional societies, such as the
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`Association for Computing Machinery (ACM), the premiere society in computing.
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`I have served in many offices of ACM’s Special Interest Group on Computer
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`Human Interaction (SIGCHI) and currently serve as its treasurer. I have been
`
`conference chair of CHI, which is the premier conference in Computer Human
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`Interaction. I was the founding editor of ACM’s Transactions on Computer Human
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`Interaction. I was a co-founder and active leader for the conference on User
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`Interface Software and Technology (UIST) for the past 29 years. I have also served
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`at the governor’s request on the Utah Science, Technology and Research (USTAR)
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`board, which oversees and funds state economic development efforts in
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`technology.
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`5.
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`I twice received best paper awards in intelligent user interfaces. In
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`2004, I was appointed to the CHI Academy for international excellence in
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`Computer Human Interaction research. In 2007, I was recognized as one of ACM’s
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`U.S. Patent 6,766,304 B2
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`Fellows for research in computer science and in 2012 received the CHI Lifetime
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`Research Award, which is the highest award in Computer Human Interaction.
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`II. Graphical User Interfaces and the ‘304 Patent
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`6.
`
`Attorneys for the Patent Holder have explained to me that U.S. Patent
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`No. 6,766,304 (“the ‘304 patent”) has been challenged as a Covered Business
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`Method (CBM) patent. I have been asked to review the nature of the invention in
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`the ‘304 patent. As explained below, it is my opinion that the ‘304 patent claims a
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`technological invention because the claimed invention provides a technical
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`improvement to prior graphical user interfaces.
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`III. Historical context
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`7.
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`In discussing how graphical user interfaces are a technology with
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`specific technical problems, I would first like to refer to two very old patents
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`involving earlier mechanical technologies. I will use these two patents to illustrate
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`two key pieces of technical knowledge that are used widely in graphical user
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`interface (GUI) technology.
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`Page 4 of 125
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`U.S. Patent 6,766,304 B2
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`sirllfiffl Iomrrna run ratings
`""5 3‘|'‘--N. 15_35
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`2 shah-mast.
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`1
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`Figure 1 — Speedometer in the Steering Wheel.
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`IV.
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`Simplification of perception — US patent 1,692,601
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`8.
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`In 1928, US. patent 1,692,601 was issued for an automobile
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`speedometer that was mounted in the center of the steering wheel. This patent
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`claims the ability to perceive an automobile’s speed. It was not for the sensor for
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`measuring speed (which was well known at the time). It was not for the concept of
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`displaying speed in a meter (which was also well known). The key claim was as
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`follows:
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`first, to provide a steering control means -for vehicles on which is
`mounted a speedometer whereby the speed of the vehicle may be
`readily determined by merely dropping the vision slightly to the
`middle portion of the steering wheel which is substantially in line with
`the line of Vision of the driver and as close to the eyes of the driver as
`possible, thus determining the speed of the vehicle with least danger
`to the driver and other occupants . ..
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`4
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`9.
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`This patent’s key contribution was that it placed the speedometer in
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`the center of the steering wheel where it was easier for the driver to perceive. This
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`was not awarded for the esthetics or appearance of that speedometer placement. It
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`was the arrangement of the components of the technology for easiest human
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`perception that was the key to this patent. It will be shown in this report that the
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`‘304 patent claims constructing a GUI to display information in particular
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`locations to improve the interface between man and machine by improving the
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`user’s perception of the relevant information, with bits and pixels comprising the
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`GUI elements rather than cables, shafts and gears.
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`V. Reduction of human effort - US 714,878
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`10.
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`In 1902, U.S. patent 714,878 was issued for a new steering
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`mechanism. The claim was not for steering, which was well known, and not for the
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`gears, shafts and motive power that were used. The essential claim of this patent is
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`as follows:
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`This invention relates to improvements in motor-vehicles or
`automobiles, and more particularly to the class of such vehicles
`wherein the front Wheels are both the driven and the steering wheels;
`and the invent-ion more especially pertains to the mechanisms and
`controlling appliances whereby the motor may be made available for
`the propulsion of the vehicle through the front steering wheels,
`whereby the motor may be employed to swing the steering-wheels to
`steer, whereby the motor may be simultaneously caused to both drive
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`U.S. Patent 6,766,304 B2
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`and steer, and whereby the motor may only drive the steering-wheels,
`the steering being operated manually.
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`The improved mechanism is especially useful on large and heavy
`motor wagons or trucks in which, especially at the time of starting the
`same, considerable power is necessary to change the relative position
`of the wheels under the body.
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`11.
`
`By this time the steering of vehicles was well known. The specific
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`technical problem that was addressed was that with very heavy vehicles the power
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`required to turn the steering wheels was beyond the capacity of normal human
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`beings. They were simply not strong enough. In this patent, a mechanism is
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`described for using power from the motor to perform the task that a human could
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`not do. As explained in this report, the ‘304 patent, rather than using a motor to
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`reduce human effort, describes a way of constructing a GUI to allow a human to
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`perceive and enter information in a way that a human previously could not. Bits
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`and pixels comprising GUI components have replaced gears, motors and shafts but
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`again human capacity to control and interface with a machine has still been
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`enhanced in a novel way.
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`VI. Graphical User Interface Technology
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`12.
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`One of the questions at issue in the Petitioner’s arguments is whether
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`or not GUIS constitute a technology. User interface technology is the subject of
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`study at institutions such as MIT-Media Lab, CMU-HCI Institute in their School of
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`Computer Science, Stanford, UC-Berkeley, University of Washington and Georgia
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`Tech. All of these highly technical institutions have strong research faculty and
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`educational programs in human—computer interaction. The goals of HCI research
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`are to invent new ways for people to interact with computers. This is not a new
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`field of study, but rather a subset of man-machine interface design. Indeed, HCI
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`has adopted a number of terms from its mechanical parent. For example, buttons,
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`sliders, exist in both fields for study, and just as changes to these features may
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`provide an improvement in a mechanical device, improving the equivalent features
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`in a GUI allows a computer to function better or even in ways that were not
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`previously conceived. For example, the various GUIS on the iPhone transform it
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`into a phone, compass, calculator, and so on. Without these GUIs, the iPhone is a
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`useless handheld computer. Indeed, the iPhone itself uses HCI design, for
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`example, by using slide to unlock to access the phone to replace a mechanical lock.
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`13.
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`Two common measures of success in HCI research are speed and
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`accuracy. Learnability is also a common success metric. The ease with which
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`someone can master a user interface is very important. Although esthetics do come
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`into play when marketing some types of products (eg, retail products), HCI
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`researchers generally ignore this aspect and focus on making a user interface more
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`effective rather than just prettier.
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`14. Merriam-Webster dictionary defines technology as “the practical
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`application of knowledge, especially in a particular area.” At issue then is the
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`knowledge, or scientific principles, that cause the invention claimed in the ‘304
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`patent to work better than previous solutions. In my opinion, at least two basic GUI
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`principles cause users to perceive the claimed GUI as an improvement over prior
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`GU15, namely: human visual search, and optimizing human effort. This section of
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`the report includes a light introduction to these principles so that they can be
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`understood with respect to the claims of the ‘304 patent.
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`VII. GUI Architecture
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`15.
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`In the case of the ‘304 patent, the claims identify the specific
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`architecture/make—up, functionality, and structural components, including order
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`entry regions allowing for user interaction, and display regions providing
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`information about the particular commodity market in which trades are occurring.
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`The design of this presentation is absolutely critical to the user’s ability to correctly
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`perceive the state of the interaction information. There are many possibilities for
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`the design of the GUI architecture and they will vary widely in how rapidly and
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`accurately the user can perceive information the user is trying to perceive. The
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`claims of the ‘304 patent describe how to construct a GUI with a very specific and
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`concrete arrangement of the presentation of the market information at particular
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`locations relative to a static price axis so as to facilitate the user’s (trader)
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`perception of the market.
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`16.
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`The ‘304 claims describe a particular way of constructing a GUI with
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`order entry regions at particular locations to allow for order entry which requires
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`less effort of the user than before and provides greater accuracy without sacrificing
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`speed versus the disclosed conventional screens. The ’304 patent claims a way of
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`constructing a GUI with a specific structure and make-up for presenting
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`information and that permits a specific way in which users can enter data and cause
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`messages to be sent, which in this case is data parameters of trade orders and
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`messages that represent trade orders. The ‘304 patent claims provide a GUI that a
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`user can see, feel and interact with no differently than a mechanical device. The
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`‘304 claims provide technical solutions to the technical problems of user’s
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`perception of market data and entry of data.
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`17.
`
`innovation in human control of processes has a long patent history.
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`US Patent 3,018,661 issued in 1957 is for an aviation display. The goal of this
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`display is as follows:
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`It is an object of the present invention to provide an
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`aircraft instrument constructed to facilitate the control of
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`an aircraft simultaneously in pitch and roll by a human
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`pilot and which preferably is combined with means to
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`display the pitch and roll attitude of the aircraft to give a
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`readily appreciated indication of the actual attitude of the
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`9
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`aircraft and the action which is required to attain the
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`desired flight path.
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`And the patent claimed providing that particular way of presenting information as
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`follows:
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`1. An aircraft instrument comprising means to define a
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`Viewing aperture, a first index supported for movement
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`within the aperture, means within the aperture to define a
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`datum position for the first index, driving means
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`connected to the first index, means to control the driving
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`means in accordance with the component of the normal
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`plane absolute acceleration of the aircraft in direction of
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`its Z axis so that the displacement of the first index from
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`the said datum position is proportional to the said
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`component of the normal plane absolute acceleration of
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`the aircraft, a further index supported for movement
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`within the aperture and means to displace the further
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`index in relation to the said datum position in accordance
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`with a demanded value, both as to magnitude and
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`direction of the normal plane absolute acceleration, said
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`demanded value being that required if some desired flight
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`10
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`path is to be achieved and a maneuver of the aircraft in
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`bank and pitch to superpose the first index and further
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`index thus resulting in the attainment of the demanded
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`normal plane acceleration and the desired flight path,
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`neglecting any components of the normal plane absolute
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`acceleration in the direction of the transverse axis of the
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`aircraft.
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`18.
`
`The innovation in this aviation patent relies upon the pilot’s ability to
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`perceive his current flight state in a way that will more easily allow him to control
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`the plane. The ‘301 patent innovates in a similar way using mouse, keyboard and
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`screen rather than gears and dials.
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`Page 12 of 125
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`VIII. Human factors
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`Case CBl\/[2015-00161
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`U.S. Patent 6,766,304 B2
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`19.
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`This is not the place for a complete discussion of the human factors
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`principles that impact the design of interfaces between man and machine.
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`However, there are three that are instructive in this case. They are: short term
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`memory, foveated perception and expressive leverage.
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`A. Seven +/- two
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`20. A great deal of what we do when we work depends upon our short-
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`term memory. Short term memory consists of the knowledge we need right now
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`for the task at hand. It has been shown that the number of concepts that can be held
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`in short term memory is between 5 and 9, which is described as the “seven plus or
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`minus two” rule. When the amount of information required for a task exceeds these
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`limits we forget something to make room for a new piece of information. This is
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`why talking with someone will cause us to forget a phone number that We just
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`looked up. The new information from talking pushes out the phone number we just
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`saw. In commodity trading, driving a car, or piloting aircraft there are many pieces
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`of information that must be considered rapidly and simultaneously to perform
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`successfully.
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`B. Foveated perception
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`21. When information is displayed on the screen, the speed and accuracy
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`with which a user can interact is heavily influenced by their ability to find desired
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`information on the screen. The visual search for information is largely controlled
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`by the anatomy of the eye and specifically the retina. Figure 3 shows the anatomy
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`of the eye. Most of the retina is the periphery with a small spot near the center
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`called the macula or the fovea. The periphery has a lot of sensors but they are quite
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`spread out and can only sense gray, not color. This means that most of the image
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`that we see at any one time is gray and quite blurry. The sensors at the fovea are
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`densely packed so that we see in high resolution and they also can sense color.
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`Fovea
`High Resolution
`COMP
`Slaw
`Saccade Else:
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`Figure 3 — Eye anatomy
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`22. At first most people do not believe that their eye works this way
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`because they think they see everything in high resolution and in color. In actuality
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`that is your visual memory that is supplying the information as well as the fact that
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`your eye can move very rapidly. As soon as you think about wanting to see
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`something, your eye moves to look at it and it appears in high resolution. This
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`effect can be understood by a simple experiment. Pick a line of text in the middle
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`13
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`of this paragraph. Hold your eyes still and without moving them, attempt to read
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`the lines above and below. With double-spaced text you will not be able to see
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`anything but a blur outside of the line you are looking at.
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`23.
`
`Because only the fovea can pick up high resolution information, it
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`relies upon the eye’s ability to move very rapidly (5 times per second) and on the
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`periphery to identify important locations to look. However, the periphery is limited
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`in its ability to identify where to look because of its low resolution (blurry images).
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`Good interface design will organize information so that it is easy for the periphery
`
`to identify where the eye should look for the desired information. For example, this
`
`is why warning lights in a car are displayed around a car’s more frequently viewed
`
`speedometer. The claims of the ‘304 patent describe a particular way of
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`constructing a GUI with a specific set of visual relationships to simplify visual
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`Search for the information.
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`C. Expressive leverage
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`24.
`
`The process of visual search is only part of the technical problem of
`
`creating an efficient interactive solution. We also need to minimize the human
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`effort to interact with the GUI. One principle of such interactivity is called
`
`“expressive leverage” [OLSE 07]. Expressive leverage is the ratio between the
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`amount of information to be expressed and the amount of human effort required in
`
`such expression. High expressive leverage creates very efficient user interfaces.
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`14
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`Natural languages such as English are attractive due to their high expressive
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`leverage.
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`25.
`
`A very common way to measure human effort in an interaction is the
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`keystroke-level model (KLM) [CARD 08]. This simply counts the number of key
`
`or button entries required to accomplish a task. This measure has many limitations
`
`but it will serve here as a simple measure of expressive leverage in this discussion.
`
`Use Previous
`
`Name:
`
`I George Mendenhall
`
`Street Address:
`
`1450 Sonoma Blvd
`
`City:
`
`_Pig Creek
`
`J
`
`l
`
`_
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`Figure 4 — Form Filling
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`26.
`
`In one application a user may be required to enter a shipping address
`
`using the form shown in figure 4. To enter the address shown in the figure requires
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`49 key presses plus 5 mouse clicks for a KLM measure of 54. If the user enters this
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`address many times, the designers can introduce the “Use Previous” button that
`
`requires only 1 click (expressive leverage of 54/ 1) to accomplish the task. This is
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`the technique used by Amazon in US Patent 5,960,411. These examples are
`
`modern instances of the same kind of innovation found in the power steering
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`patent. Again bits and pixels have replaced shafts, wheels and gears but the
`
`concept of magnifying the power of humans to effect desired actions is the same.
`
`IX.
`
`The ‘304 patent analysis
`
`27.
`
`The preceding discussion has laid out some of the knowledge and
`
`principles found in the field of interface design. We have shown that improvements
`
`to interfaces have long been the subject of patentable technologies and provide
`
`specific benefits. In particular, the ‘304 patent addresses the technical problem of
`
`increasing the speed and accuracy of entering data and usability by constructing a
`
`GUI to improve user interaction by displaying market information and order entry
`
`locations selectable by a single action to set parameters and send order messages at
`
`particular locations relative to price levels along a static price axis. It is not the
`
`nature of commodity trading that is claimed in the ‘304 patent but rather the
`
`technology of a new mechanism for improved efficiency in entering data and
`
`sending messages representing trades that is claimed.
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`
`Figure 5 — [Figure 1] from the ‘304 patent
`
`The second paragraph (first element) of claim I is as follows:
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`dynamically displaying a first indicator in one of a plurality of
`
`locations in a bid display region, each location in the bid display
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`region corresponding to a price level along a common static price
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`axis, the first indicator representing quantity associated with at least
`
`one order to buy the commodity at the highest bid price currently
`
`available in the market;
`
`29.
`
`This element provides benefits for several reasons. First is that the
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`axis alignment improves visual search by the fovea for a specific market price.
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`Alignment along the axis gives the eye a very specific direction to look. Arranging
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`the prices in regular intervals gives the brain’s visual system a good idea of exactly
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`how far to look to locate a specific price. The third paragraph of claim 1 is as
`
`follows:
`
`dynamically displaying a second indicator in one of a plurality of
`
`locations in an ask display region, each location in the ask display
`
`region corresponding to a price level along the common static price
`
`axis, the second indicator representing quantity associated with at
`
`least one order to sell the commodity at the lowest ask price currently
`
`available in the market;
`
`The same points as those of paragraph 2 apply here. In addition, the alignment of
`
`ask information along the same axis as the bid information allows for a unified
`
`perception of both aspects of commodity trading. The requirement of the common
`
`static price axis displayed against both bid and ask solves the technical problem of
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`the user efficiently perceiving the whole market.
`
`30.
`
`The fourth paragraph of claim 1 continues:
`
`displaying the bid and ask display regions in relation to fixed price
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`levels positioned along the common static price axis such that when
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`the inside market changes, the price levels along the common static
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`price axis do not move and at least one of the first and second
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`indicators moves in the bid or ask display regions relative to the
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`common static price axis;
`
`The commodity market is highly dynamic. By tying the bid and ask regions to a
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`common price axis that does not move, the inventors have harnessed the eye’s
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`periphery. Here the ‘304 patent provides a GUI that improves on the technical
`
`problem of interactively responding to a changing market. By organizing the
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`display around a static price axis, the claimed interface enhances the user’s
`
`perception of other market information such as “highest bid” or “lowest ask”
`
`prices. These indicators moving relative to the static price axis makes their
`
`behavior much easier to understand.
`
`31.
`
`The fifth paragraph of claim 1 reads:
`
`displaying an order entry region comprising a plurality of locations for
`receiving commands to send trade orders, each location corresponding
`to a price level along the common static price axis; and
`
`This paragraph of the claim further defines the structure and features of the GUI,
`
`namely the order entry region that a user may select to send trade orders. This
`
`paragraph shows that the claimed invention addresses the whole interactive
`
`problem, not just the visual display. Specifically, the claimed GUI provides
`
`functionality for a trader to not only understand the market but repeatedly take
`
`action within that market. Again the “static price axis” becomes a concrete visual
`
`anchor that visually organizes bid/ask actions with market information. This is the
`
`same kind of tight integration that merges the speedometer (information) with the
`
`steering wheel (action) to simplify driving a car or avionics instruments
`
`(instruments) with aircraft control (action).
`
`32.
`
`The sixth and final paragraph of claim 1 reads:
`
`in response to a selection of a particular location of the order entry
`
`region by a single action of a user input device, setting a plurality of
`
`19
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`Page 20 of 125
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`Case CBM20l5-00161
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`U.S. Patent 6,766,304 B2
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`parameters for a trade order relating to the commodity and sending the
`trade order to the electronic exchange.
`
`This element requires that user interact with the claimed features of the GUI one
`
`time to both set a plurality of parameters of a trade order and then send the trade
`
`order to the exchange.
`
`33.
`
`The whole of the language of claim 1 is not about executing
`
`commodity trades. The claim provides the structure, make-up, and functionality to
`
`address technical problems of providing a GUI that is efficient to perceive and
`
`accurate and efficient for entering data over the conventional systems (e.g., Fig. 2
`
`GUIs) that the patent discloses. The inventors have applied GUI design knowledge
`
`to the particular area of commodities trading to achieve a practical solution of
`
`providing a more efficient interface for doing commodity trading. Thus, they have
`
`applied technical knowledge to a technical problem.
`
`X. Market speed
`
`34.
`
`In previous Work by the inventors and others it was common to
`
`provide the current market bid and ask prices in a fixed location in a GUI. Figure 6
`
`reproduces figure 2 from the ‘304 patent. The patent describes this as the normal
`
`user interface for commodity trading before the technology covered by the ‘304
`
`patent was introduced. It is also my understanding that these displayed prices
`
`could be clicked to execute an order at the current market price. The problem is
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`Page 21 of 125
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`Case CBM2015-00161
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`U.S. Patent 6,766,304 B2
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`that people cannot respond to visual data in less than 200 milliseconds and usually
`
`much longer. However, the commodities market changes much faster than that.
`
`This means that traders using such a user interface would not always order at the
`
`price they thought they were (if they were trying to obtain a particular price)
`
`because between the time they decided to order and they could execute a click the
`
`price would have changed. From the user’s perspective, an order placed at a price
`
`that differed from their intended price would be a data entry error. From the
`
`computer’s perspective, the interface would be operating correctly. The ‘304
`
`method provides an improved GUI for traders who want to enter an order at a
`
`particular price because it constructs the GUI in a way that removes that
`
`discrepancy between the user’s intended price and what the computer understands
`
`the user’s selected price to be. This allows for exact price orders to be executed,
`
`addressing this problem.
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`Page 22 of 125
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`
`
`References
`
`Case CBM2015—O0l61
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`U.S. Patent 6,766,304 B2
`
`[CARD 80] Card, Stuart K; Moran, Thomas P; Allen, Newell (1980). "The
`
`keystroke-level model for user performance time with interactive systems".
`
`Communications of the ACM 23 (7): 396-410.
`
`[OLSE 07] Olsen, D. R. "Evaluating User Interface Systems Research,"
`
`UIST 2007, ACM (2007)
`
`I declare that all statements made herein of my knowledge are true, and that
`
`all statements made on information and belief are believed to be true, and that
`
`these statements were made with the knowledge that willful false statements and
`
`the like so made are punishable by fine or imprisonment, or both, under Section
`
`1001 of Title 18 of the United States Code.
`
`Date:
`
`By:
`
`Dan R. Ols
`
`,J.
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`Page 23 of 125
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`
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`APPENDIX A
`[CARD 80]
`
`
`
`
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`Page 24 of 125
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`
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