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`IBG LLC, et al. v. Trading Technologies International, Inc.
`
`Dan Olsen
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`Page 1
` UNITED STATES PATENT AND TRADEMARK OFFICE
` 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 (Patent No. 6,766,304 B2)
` CBM2015-00172 (Patent No. 7,783,556 B1)
` CBM2015-00179 (Patent No. 7,533,056 B2)
` CBM2015-00181 (Patent No. 7,676,411 B2)
` CBM2015-00182 (Patent No. 6,772,132 B1)
`
` Deposition of DAN R. OLSEN, JR., taken at
` McDonnell Boehnen Hulbert & Berghoff LLP,
` before Donna M. Kazaitis, CSR, RPR, CLR, and
` CRR, commencing at the hour of 9:07 a.m. on
` Thursday, July 28, 2016.
`
`____________________________________________________
` DIGITAL EVIDENCE GROUP
` 1730 M Street, NW, Suite 812
` Washington, D.C. 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2016
`
`202-232-0646
`
`IBG 1051
`CBM2015-00181
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`
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`7/28/2016
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`IBG LLC, et al. v. Trading Technologies International, Inc.
`
`Dan Olsen
`
`Page 2
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
` STERNE KESSLER GOLDSTEIN FOX
` BY: ROBERT SOKOHL, ESQ.
` RICHARD M. BEMBEN, ESQ.
` 1100 New York Avenue, NW
` Washington, DC 20005
` 202.371.2600
` rsokohl@skgf.com
` rbemben@skgf.com
`
`ON BEHALF OF THE PATENT OWNER:
`
` MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
` BY: JENNIFER M. KURCZ, ESQ.
` 300 South Wacker Drive
` Chicago, Illinois 60606-6709
` 312.913.3311
` kurcz@mbhb.com
`
` FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER LLP
` BY: CORY C. BELL, ESQ.
` Two Seaport Lane
` Boston, Massachusetts 02210-2001
` 617.646.1600
` cory.bell@finnegan.com
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`Digital Evidence Group C'rt 2016
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`7/28/2016
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`IBG LLC, et al. v. Trading Technologies International, Inc.
`
`Dan Olsen
`
`Page 3
`
` INDEX
` PAGE
`DAN R. OLSEN, JR.
` Examination by Ms. Sokohl 4
` Examination by Ms. Kurcz 136
`
` EXHIBITS
`TRADING TECH PAGE
`Exhibit 2174 CBM2015-00181, 16
` U.S. Patent 7,676,411
`
`Exhibit 2174 CBM2015-00161, U.S. Patent 17
` 6,766,304 B2; CBM2015-00172,
` U.S. Patent 7,783,556 B1;
` CBM2015-00179, U.S. Patent
` 7,533,056 B2
`
`Exhibit 2174 CBM2015-00182, U.S. Patent 17
` 6,772,132 B2
`
`TS PAGE
`Exhibit 1001 U.S. Patent 6,766,304 B2 48
`
`IBG
`Exhibit 1001 U.S. Patent 7,676,411 B2 49
`Exhibit 1001 U.S. Patent 6,772,132 B1 49
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` DAN R. OLSEN, JR.,
`having been first duly sworn, was examined and
`testified as follows:
` EXAMINATION
`BY MR. SOKOHL:
` Q. Good morning.
` A. Good morning.
` Q. Would you state your name for the
`record.
` A. Dan Reid Olsen, Jr.
` MS. KURCZ: Should we introduce
`ourselves for purposes of the record so we know
`who's present.
` MR. SOKOHL: Absolutely.
` MS. KURCZ: Good morning. Jennifer
`Kurcz on behalf of patent owner, Trading
`Technologies, and with me I have Cory Bell also on
`behalf of Trading Technologies.
` MR. SOKOHL: And on behalf of
`petitioners, IBG and Tradestation, Robert Sokohl
`from Sterne Kessler, and with me is Richard
`Bemben.
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2016
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`BY MR. SOKOHL:
` Q. Once again, good morning.
` So, first of all, have you ever
`been deposed before?
` A. Yes.
` Q. We'll go through that in a second.
`I'd like to go through some ground rules. I'm
`sure you have heard it before but I'll say it just
`for your convenience.
` First of all, we'll try to take a
`break every hour. But if you want to take a break
`at any time let me know and we'll take one.
` A. Okay.
` Q. All I ask is that you answer the
`question that's pending; otherwise, we're free to
`take a break whenever you like.
` Are you on any medications today?
` A. No.
` Q. Any reason you can't provide truthful
`evidence today?
` A. No.
` Q. You understand you have to give verbal
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`Digital Evidence Group C'rt 2016
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`Page 6
`responses, that the court reporter can't take down
`nods and things of that nature, so you have to say
`"yes" or "no" or provide an answer.
` A. Yes.
` Q. Okay. Excellent. I'm going to try
`not to speak over you. I'd appreciate it if you'd
`try not to speak over me. Really it's for the
`court reporter's convenience, not mine.
` I'd like you to let me know if you
`don't understand a question.
` A. Okay.
` Q. If you answer a question, I'm going to
`assume you understand it. Is that fine?
` A. Yes.
` Q. You understand you're under oath
`today?
` A. Yes.
` Q. How did you prepare for today's
`deposition?
` MS. KURCZ: Objection. Just to the
`extent -- I'd caution the witness to the extent it
`reveals attorney-client privilege or work product,
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`not to disclose those types of discussions.
` THE WITNESS: So reviewed my reports
`and the patents with counsel.
`BY MR. SOKOHL:
` Q. Who did you meet with in preparing for
`this?
` A. Jen and Cory.
` Q. When did you meet?
` A. Yesterday.
` Q. How long did you meet for?
` A. We also met the day before. So the
`day before probably four hours, yesterday six.
` Q. And did you review any other documents
`other than what's the three petitions, I think
`there's three declarations, and the patents you
`mentioned?
` A. In preparation or in preparation of
`the report?
` Q. In preparation for your deposition.
` A. Just what we have here.
` Q. Okay. You mentioned earlier that you
`had been deposed before.
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`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2016
`
`202-232-0646
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`IBG LLC, et al. v. Trading Technologies International, Inc.
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` A. Yes.
` Q. How many times have you been deposed?
` A. Three or four.
` Q. And what was the context of those
`three or four depositions?
` A. The first would be with the
`Communications Decency Act. The second would be
`with Child Online Protection Act. I was deposed
`relative to a matter with HTC. I'm trying to
`remember if I was deposed with Samsung or not. I
`can't remember for sure.
` Q. Were any of those related to patents?
` A. Yes. HTC and Samsung would have been
`patents.
` Q. And what were you testifying in regard
`to in the HTC matter?
` MS. KURCZ: Objection. Just caution
`the witness not to disclose third-party
`confidential information.
`BY MR. SOKOHL:
` Q. Just generally.
` A. Relative to the design of user
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`Page 9
`interface technology. It was a case with Apple.
` Q. And who did you represent?
` A. HTC.
` Q. And the Samsung case, what was that
`generally about?
` A. Same thing.
` Q. And who did you represent in the
`Samsung case?
` A. Samsung.
` Q. Do you recall who that was against?
` A. Apple.
` Q. Are you a patent attorney?
` A. No.
` Q. Do you consider yourself an expert in
`patent law?
` A. No.
` Q. Do you know what a covered business
`method is?
` A. In preparing my report, I read a web
`page and I read sections of the petition on the
`'304 I believe. That's the extent of my
`knowledge.
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` Q. If I refer to a covered business
`method as a CBM, would you understand what I'm
`talking about?
` A. Yes.
` Q. I think you've answered this question,
`but have you studied any case law surrounding
`CBMs?
` A. Case law?
` Q. Uh-huh.
` A. No, not really, other than a web page
`and, as I mentioned, the petition.
` Q. And what web page was that?
` A. I couldn't tell you. Wikipedia. I
`don't know. I just typed in "common business
`method" and read what I found.
` Q. Do you remember what you read?
` MS. KURCZ: Objection to the extent
`that -- I'd just caution the witness to the extent
`you didn't rely on any information in forming your
`opinion, I'd caution the witness on that aspect.
` THE WITNESS: In detail of what I
`read, I couldn't tell you.
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2016
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`202-232-0646
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`BY MR. SOKOHL:
` Q. Do you remember generally?
` A. The gist of what I got was that it was
`a process for reviewing for whether patents could
`be challenged. Mostly I had never heard of it, so
`I was looking for where on earth are we on this
`planet.
` Q. Have you ever heard the term "GUI
`tool"?
` A. Yes.
` Q. And you understand by "GUI" I mean
`graphical interface?
` A. Yes.
` Q. And if I use that abbreviation, that
`will be acceptable.
` A. That will be fine.
` Q. So my question is have you heard the
`term "GUI tool"?
` A. Yes.
` Q. And what's a GUI tool?
` A. Well, actually, it could mean many
`things, but it's a tool that uses a graphical user
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`Digital Evidence Group C'rt 2016
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`
`interface.
` Q. What do you mean by a tool that uses a
`graphical user interface?
` A. I'm not sure I understand your
`question.
` Q. When I asked you what a GUI tool was,
`you said it's a tool that, you said it's a tool
`that uses a graphical user interface, and I'm
`trying to understand what you mean by that.
` What's the tool part of that
`sentence?
` MS. KURCZ: Objection, form.
` THE WITNESS: A tool would be a
`combination of device, technique, software, that
`accomplishes some purpose, that uses a graphical
`user interface.
`BY MR. SOKOHL:
` Q. So a GUI tool is something that uses a
`graphical user interface?
` MS. KURCZ: Objection, form.
` THE WITNESS: Yes.
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`BY MR. SOKOHL:
` Q. And so the GUI is distinct from the
`tool?
` MS. KURCZ: Objection, form.
` THE WITNESS: I would not say so, no.
`BY MR. SOKOHL:
` Q. And why not?
` A. It would depend on the context that
`we're talking about.
` Q. And what context would that be?
` MS. KURCZ: Objection, form.
` THE WITNESS: Depends if we're talking
`at the software left, at the user level. It
`really depends on the context, who are we talking
`about and what's the task we're talking about.
`BY MR. SOKOHL:
` Q. Have you ever used Trading
`Technologies products?
` MS. KURCZ: Objection, scope.
` THE WITNESS: Never.
`BY MR. SOKOHL:
` Q. Are you familiar with the "MD Trader"
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`Digital Evidence Group C'rt 2016
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`product?
` MS. KURCZ: Same objection.
` THE WITNESS: MD?
`BY MR. SOKOHL:
` Q. MD Trader, have you ever heard that
`product?
` A. It might have been mentioned in the
`petitions that I read. I couldn't remember for
`sure.
` Q. But you've never used the MD Trader
`product?
` A. Never.
` Q. If you've never used the MD Trader, I
`assume you've never traded stock using the MD
`Trader?
` A. Never.
` MS. KURCZ: Objection, scope.
`BY MR. SOKOHL:
` Q. Have you ever designed a GUI for
`trading commodities?
` A. No.
` Q. Are you familiar with how CPUs work?
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` A. CPUs?
` Q. Central processing units.
` A. Roughly.
` Q. How about computer networks?
` A. I have --
` MS. KURCZ: Objection, scope.
` THE WITNESS: I have some knowledge of
`computer networks, yes.
`BY MR. SOKOHL:
` Q. How about computer displays?
` MS. KURCZ: Objection, scope.
` MR. SOKOHL: Goes to his background,
`Counsel.
` THE WITNESS: Yes. I have knowledge
`of computer displays.
`BY MR. SOKOHL:
` Q. How about monitors?
` A. Yes. I have knowledge of monitors.
` Q. How about keyboards?
` MS. KURCZ: Objection, scope,
`foundation.
` THE WITNESS: Well, just to clarify, I
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`Page 16
`have knowledge of how they're used and how they
`relate to the software. I have almost no
`knowledge of actually how they're built.
`BY MR. SOKOHL:
` Q. Are you familiar with how computer
`mice work?
` A. Yes.
` Q. Would that be the same qualification
`that you know how to use but you don't know how
`they're built?
` MS. KURCZ: Objection, form.
` THE WITNESS: I do know how to program
`one. I couldn't build one.
`BY MR. SOKOHL:
` Q. I am going to hand you what's been
`marked as Trading Tech Exhibit 2174 in
`CBM2015-00181. And this relates to U.S. Patent
`Number 7,676,1411. (Document tendered to the
`witness.)
` Do you recognize this document?
` A. Yes.
` Q. And is that your signature on Page 22?
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`202-232-0646
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` A. Yes.
` Q. We'll come back to that document.
` I am now going to hand you what's
`been marked as Trading Tech Exhibit 2174 in
`CBM2015-00179. This also deals with
`CBM2015-00161, and CBM2015-00172. This deals with
`three patents, U.S. Patent Number 7,533,056 and
`U.S. Patent Number 7,783,556 and U.S. Patent
`Number 6,766,304. (Documents tendered to the
`witness.)
` Do you recognize that document?
` A. Yes.
` Q. Is that your signature on Page 22?
` A. Yes.
` Q. And I believe there's one more. The
`third document I'm going to hand you is marked
`Trading Tech Exhibit 2174, and this is for
`CBM2015-00182 and this relates to U.S. Patent
`Number 6,772,132. (Document tendered to the
`witness.)
` Do you recognize that document?
` A. Yes.
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`Page 18
` Q. And is that your signature on Page 21?
` A. Yes.
` Q. Okay. I'm going to do my very best to
`ask specific questions about specific documents.
`A lot of my questions are really generic to all
`three. If I don't specify a specific patent, it's
`going to be generic to all three.
` Do you understand? Is that
`acceptable to you?
` A. Yes.
` Q. Okay. Let's start with the second
`document I gave you, which is the one that's, it's
`for three patents and it's for CBM2015-00161.
`Okay.
` A. If I may be clear, we're looking at
`the '304?
` Q. We are, that's correct.
` A. Okay.
` Q. Now, I'd like you to turn to Page 16.
`And you see there's a Roman numeral IX?
` A. Yes.
` Q. And it says the '304 Patent analysis?
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` A. Yes.
` Q. And that analysis spans the pages
`through Page 20; correct?
` A. Correct.
` Q. And the analysis for U.S. Patent
`Number 6,766,304; correct?
` A. Correct.
` Q. I'd like you to look at the front
`cover of this declaration. You'll notice there's
`two other patents listed, the 7,783,556 and the
`7,533,056, and I note there's no analysis for
`either of those patents.
` A. That is correct.
` Q. And so did you review those two
`patents?
` A. I did not.
` Q. And so you have no opinion as to those
`two patents?
` A. That is correct.
` Q. So you have no opinion about Patent
`Number 7,783,556?
` A. No.
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` Q. And you have no opinion about U.S.
`Patent Number 7,533,056?
` A. No.
` Q. So this declaration does not apply to
`those two patents?
` MS. KURCZ: Objection, form.
` THE WITNESS: I did not review those.
`I only reviewed the '304 for this declaration.
`BY MR. SOKOHL:
` Q. Okay. Thank you. Let's turn to
`Paragraph 14 in that document.
` In Paragraph 14 you provide a
`dictionary definition from Merriam-Webster for
`"technology"; correct?
` A. Yes.
` Q. And that definition is, quote, "the
`practical application of knowledge, especially in
`a particular area."
` A. Correct.
` Q. Is that the definition you applied in
`opining on whether or not the claims of the '304
`Patent are technology?
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` A. Yes.
` Q. Did you apply any other definitions?
` A. No.
` Q. Who suggested that definition?
` MS. KURCZ: Objection, form.
` THE WITNESS: I did.
`BY MR. SOKOHL:
` Q. And based on that definition, it is
`your opinion that the claims of the '304 Patent
`are directed to technology?
` A. Yes.
` Q. I believe the same definition appears
`in the other two petitions, other two
`declarations, and I believe it's also Paragraph 14
`in each. Let me confirm that. Yes. In both the
`'411 declaration and the '132 declaration it's
`Paragraph 14. You can confirm that.
` A. That is correct.
` Q. And did you apply that definition in
`determining whether the claims of the '411 Patent
`were technology?
` A. Yes.
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` Q. And did you apply that definition in
`determining that the claims of the '132 patent
`were technology?
` A. Yes.
` Q. In regard to the '411 Patent, did you
`apply any other definitions other than what's in
`Paragraph 14?
` A. Definitions of technology?
` Q. Yes.
` A. No.
` Q. In regard to the '132 patent, did you
`apply any other definitions other than what's in
`Paragraph 14 in regard to technology?
` A. No.
` Q. Before we dive into these, do you
`have, as you sit here today, are there any
`corrections that you'd like to make to these
`declarations, any typos or anything that you
`noticed in reviewing that you'd like to correct
`before we start?
` A. There is one. I can't be sure if I
`remember where it is. There it is right there.
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`Paragraph 18 on the '304. It says the '301
`patent. That should say 304.
` Q. Oh, look at that. I missed that
`myself. Great.
` Anything else?
` A. Not that I've noticed, no.
` Q. Very good.
` Do you have a CV?
` A. Yes.
` Q. Is there any reason that you did not
`provide a CV as part of your declarations?
` MS. KURCZ: Objection, form.
` THE WITNESS: No.
`BY MR. SOKOHL:
` Q. Is it possible to get a copy of your
`CV?
` A. It's online.
` Q. I understand that you have received
`your doctorate from UPenn?
` A. Yes.
` Q. Where did you go to undergrad?
` A. Brigham Young University.
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` Q. BYU. And you graduated with what
`degree from BYU?
` A. Bachelor's in computer science.
` Q. After BYU what did you do next as far
`as education is concerned?
` A. I completed a Master's of computer
`science at BYU.
` Q. And then you went on to UPenn?
` A. University of Pennsylvania.
` Q. What year did you graduate from UPenn?
` A. '81.
` Q. Your Ph.D., what was your thesis?
` A. My thesis, it was on a language for
`generating user interface software. I can't
`remember the title today.
` Q. That's fine.
` Let me ask this generally because
`it might be the easier way to get to the answer.
`I've looked at your qualifications in your
`declaration, what's in Paragraph 1, and it appears
`you have worked at a number of universities.
` A. Uh-huh.
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` Q. Have you ever worked in industry?
` A. Yes.
` Q. Where?
` A. Burroughs Corporation.
` Q. When was that?
` A. Let's see, that would have been
`between '98, no, not '98, '78 and '80 I believe.
` Q. '80?
` A. 1980, yes.
` Q. And what did you do for the Burroughs
`Corporation?
` A. I wrote software.
` Q. What kind of software?
` A. I wrote the compiler for FORTRAN.
` Q. Did you write any other type of
`software for Burroughs?
` A. I wrote a piece of diagnostic software
`for our new array processor called Rhoda, if you
`actually care. It died centuries ago.
` Q. Anything else at Burroughs?
` A. I wrote some scheduling software for
`them.
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` Q. Anything else?
` A. I did direct the operating systems
`group for about six months.
` Q. Anything else?
` A. No, probably not at this level.
` Q. Before you retired from -- no. That's
`not a fair question. Scratch that. I remembered
`something else and I was wrong. So let me start
`over.
` Have you worked at any other, in
`industry, other than Burroughs Corporation?
` A. I did work for BYU as a programmer.
`So that's sort of halfway.
` Q. And what type of programming did you
`do for BYU?
` A. Student records.
` Q. Anything else?
` A. Scholarships.
` Q. Anything else?
` A. No.
` Q. Did you write any software for -- let
`me back up.
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` Other than Burroughs and BYU, have
`you written code for anyone else?
` A. Yes. I've done some consulting.
`Let's see if I can think back that far. I wrote
`software for a bank in Philadelphia whose name I
`can no longer remember.
` Q. Okay. What type of code did you
`write?
` A. It was for tracking, retail customer.
` Q. So other than you mentioned now
`Burroughs, BYU, and a bank to be named later, any
`other software you've written for anyone?
` A. Well, there is my current company.
` Q. And that's Sparxteq?
` A. Yes.
` Q. And what did you do for them?
` A. I am the CEO, the chief programmer,
`the guy that does the accounting.
` Q. And what's the nature of that
`business?
` A. We're building software for education.
` Q. While you were at Burroughs, did you
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`write any code regarding user interfaces?
` A. Rhoda, the diagnostic software, was a
`user interface to the underlying machine.
` Q. What do you mean to the underlying
`machine?
` A. Well, it was actually one of the first
`machines that didn't have front panel switches.
`This is really old stuff. And my software would
`allow people who were trying to operate the
`machine to actually go in and set and interrogate
`various settings inside the machine.
` Q. So that user interface, it wasn't a
`graphical user interface?
` A. It was not.
` Q. So did you write any codes at
`Burroughs for graphical user interfaces?
` A. No.
` Q. While you were at BYU, did you write
`any code for graphical user interfaces?
` A. As part of the job?
` Q. Uh-huh.
` A. No.
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`Page 29
` Q. In any other context did you write --
` A. As a student I wrote lots of graphical
`interfaces.
` Q. We'll come back to that. Then how
`about for the unnamed bank?
` A. The unnamed bank. There were user
`interfaces but they were not graphical.
` Q. How about for Sparxteq?
` A. They're all graphical.
` Q. Because that's educational software?
` A. Uh-huh.
` Q. And you're presenting some type of --
` A. Quizes.
` MS. KURCZ: Objection, form.
` MR. SOKOHL: Thank you.
`BY MR. SOKOHL:
` Q. At BYU I think you mentioned maybe
`when you were a student you wrote code for GUIs?
` A. Yes.
` Q. What type of GUIs?
` A. Actually, I was building tools for how
`to build graphical user interfaces. So we built
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`Page 30
`all kinds. I designed a system for automatically
`generating GUI code.
` Q. What do you mean by that,
`"automatically generating GUI code"?
` A. So we would accept a specification and
`then from that specification, which was in the
`form of programming language construct, we would
`generate the menus and various other parts of the
`graphical user interface.
` Q. None of the GUIs you have written in
`the past have dealt with trading software;
`correct?
` A. That is correct.
` Q. Let's pick up the '304 declaration
`again. In Paragraphs 24 and 27, and I'll guide
`you to exactly where I am, I'll ask you the
`question and show you where it is. You actually
`use the term "we" in this paragraph, and I'm just
`wondering who the "we" was.
` So in Paragraph 24, we'll look at
`24 first to make it easier for you.
` A. 24.
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`Page 31
` Q. The second sentence, you say "we also
`need to minimize the human effort to interact with
`the GUI."
` I'm just wondering what you meant
`by "we."
` A. That's just a -- in the kind of
`technical writing I do, you never use "I."
` Q. Okay.
` A. Everything is always "we," even if you
`were the only one.
` Q. Very good.
` And would that be the same for
`Paragraph 27, also the second sentence?
` A. That would be the same for everything
`I wrote.
` Q. Very good. Thank you.
` I think this is going to be an
`easier question if I ask it generally, but if not
`just let me know: How many hours did you spend
`preparing the three declarations, approximately?
` A. Approximately, I would say between 10
`and 20, if I was to guess. It could err either
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`way.
` Q. Do you agree that you couldn't break
`it up individually into the three, so I asked
`collectively?
` MS. KURCZ: Objection, form.
`BY MR. SOKOHL:
` Q. Or can you break it up?
` A. I probably could if I looked at my
`billing records, but I don't have them with me.
` Q. Okay. Did you write these
`declaration