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.,
`IBFX, INC.,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`____________________
`
`Patent No. 7,676,411
`____________________
`
`
`DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITION FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,676,411
`
`
`IBG 1019
`CBM of U.S. Pat. No. 7,676,411
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`IBG LLC,
`INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC.,
`TRADESTATION TECHNOLOGIES, INC.,
`IBFX, INC.,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`____________________
`
`Patent No. 7,676,411
`____________________
`
`
`DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITION FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,676,411
`
`
`IBG 1019
`CBM of U.S. Pat. No. 7,676,411
`
`
`
`U.S. Patent No. 7,676,411
`
`I, Kendyl A. Román, declare as follows:
`
`1.
`
`I have been engaged by Sterne, Kessler, Goldstein & Fox P.L.L.C. on
`
`behalf of IBG LLC, IBFX, Inc., Interactive Brokers LLC, TradeStation Group,
`
`Inc., TradeStation Securities, Inc., and TradeStation Technologies, Inc.,
`
`(“Petitioners”) for the above-captioned covered business method review
`
`proceeding. I understand that this proceeding involves United States Patent
`
`7,676,411, entitled “Click based trading with intuitive grid display of market
`
`depth,” by Gary Allan Kemp, II, filed October 25, 2006 and issued March 9, 2010,
`
`(the “’411 Patent”). I understand that the ’411 Patent is currently assigned to
`
`Trading Technologies International, Inc. (“TT”).
`
`2.
`
`I understand the ’411 Patent claims benefit from U.S. provisional
`
`application 60/186,322. For purposes of the covered business method review, I
`
`assume the earliest possible priority date of the ’411 Patent is the March 2, 2000
`
`filing date of U.S. provisional application 60/186,322.
`
`3.
`
`I have reviewed and am familiar with the specification of the ’411
`
`Patent. I understand that the ’411 Patent has been provided as Exhibit 1001. I will
`
`cite to the specification using the following format (’411 Patent, 1:1-10). This
`
`example citation points to the ’411 Patent specification at column 1, lines 1-10.
`
`
`
`- 2 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`4.
`
`I have reviewed and am familiar with the file history of the ’411
`
`Patent. I understand that the file history has been provided as Exhibit 1002.
`
`5.
`
`I have also reviewed and am familiar with the following prior art used
`
`in the Petition for Covered Business Method Review of the ’411 Patent:
`
`• U.S. Patent No. 5,077,665 to Silverman et al. (“Silverman”). I
`
`understand that Silverman has been provided as Exhibit 1003.
`
`• U.S. Patent No. 5,297,031 to Gutterman et al. (“Gutterman”). I
`
`understand that Gutterman has been provided as Exhibit 1004 .
`
`• WO 90/11571 to Belden et al. (“Belden”). I understand that
`
`Belden has been provided as Exhibit 1009.
`
`• U.S. Patent No. 5,375,055 to Togher et al. (“Togher”). I
`
`understand that Silverman has been provided as Exhibit 1005 .
`
`• U.S. Patent No. 5,263,134 to Paal et al. (“Paal”). I understand
`
`that Paal has been provided as Exhibit 1018.
`
`• U.S. Patent No. 5,960,411 to Hartman et al. (“Hartman”). I
`
`understand that Hartman has been provided as Exhibit 1027.
`
`• A certified translation of “System for Buying and Selling Futures
`
`and Options Transaction Terminal Operational Guidelines”
`
`- 3 -
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`
`
`
`
`
`
`
`
`(“TSE”). I understand that the original Japanese language
`
`document was provided as Exhibit 1006, the certified translation
`
`provided as Exhibit 1007, and the certification of translation
`
`provided as Exhibit 1008.
`
`6.
`
`I have also reviewed and am familiar with:
`
`• The Board’s Decision to Institute CBM review of the ’411 Patent in
`
`CBM2014-00133 (“Ins. Dec.”). I understand that the Ins. Dec. has
`
`been provided as Exhibit 1029
`
`• TT’s Patent Owner Response in CBM2014-00133 (“POR”). I
`
`understand that the POR has been provided as Exhibit 1031.
`
`7.
`
`A complete listing of additional materials considered and relied upon
`
`in preparation of my declaration is provided as Exhibit 1021. I have relied on
`
`these materials to varying degrees. Citations to these materials that appear below
`
`are meant to be exemplary but not exhaustive.
`
`8.
`
`The ’411 Patent describes click based trading with intuitive grid
`
`display of market depth. (’411 Patent, Title.) I am familiar with the technology
`
`described in the ’411 Patent as of the earliest possible priority date of the ’411
`
`Patent (March 2, 2000).
`
`
`
`- 4 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`9.
`
`I have been asked to provide my technical review, analysis, insights
`
`and opinions regarding the ’411 Patent and the above-noted references that form
`
`the basis for the grounds of unpatentability set forth in the petition for Covered
`
`Business Method Review of the ’411 Patent.
`
`I.
`
`QUALIFICATIONS
`
`10. See my Curriculum Vitae provided as Exhibit 1020 for a listing of my
`
`qualifications. This includes a list of publications for the past 10 years or more.
`
`11. My expertise qualifies me to do the type of analysis required in this
`
`case. Of particular relevance, I have been involved in the design, implementation,
`
`testing, and analysis of computer software, firmware, and hardware for over thirty
`
`years, including software architecture, graphical user interfaces, trading systems,
`
`and other networked, data-driven client-server systems. My work has included
`
`analysis of trading systems including source code and user interfaces. In addition, I
`
`have practical experience in the design and programming of a variety of computer
`
`systems ranging from handheld devices, to laptops and desktop computers, to large
`
`multi-layer networked database systems.
`
`12. As a freshman at Brigham Young University (“BYU”) in 1976, I
`
`started writing programs for IBM computers.
`
`
`
`- 5 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`13.
`
`In 1980, I worked with Apple II computers and wrote computer
`
`programs having graphic user interfaces.
`
`14.
`
`In the late 1960’s and 1970’s, the University of Utah was known for
`
`its pioneering work in computer graphics (and the Internet1). At BYU, I got
`
`involved with computer graphics and wrote graphics programs. Many of my BYU
`
`professors had been at the University of Utah during its computer science
`
`pioneering years. One of my BYU professors, Alan Ashton, and a fellow
`
`computer science student, Bruce Bastian, worked together on word processing
`
`software with graphical display. Later, Professor Ashton and Bruce Bastian
`
`founded WordPerfect.
`
`15.
`
`I graduated with High Honors from Brigham Young University where
`
`I received a Bachelor of Science degree in Computer Science. My formal studies
`
`included computer architecture, computer programming, programming languages,
`
`algorithms, operating systems, database systems, and digital logic design.
`
`16.
`
`In 1981, I worked at International Business Machines (“IBM”) in San
`
`Jose, CA. At IBM, I had a graphics display on my desk and wrote programs that
`
`displayed custom graphics. During my employment at IBM, the IBM Personal
`
`
`1 In 1969, University of Utah was one of the first four nodes on the Internet.
`
`
`
`- 6 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`Computer (“PC”) was released. The IBM PC also supported graphical user
`
`interfaces.
`
`17.
`
`In 1982, at Dialogic, I improved the performance of the Computer
`
`Aided Design (“CAD”) software.2 The CAD software drew polygons on the
`
`graphical display and placed them along value axes.
`
`18.
`
`In this timeframe, I had experience with Tandy computers, including
`
`the TRS-80, and Commodore VIC 20 computers, which supported graphical user
`
`interfaces.
`
`19.
`
`In 1984, I starting writing programs for the Apple Lisa and
`
`Macintosh, which had a sophistical graphical user interface built into the firmware
`
`and operating system. Both Lisa and Macintosh used a one-button mouse as a
`
`pointing device. The user controls various operations by clicking, double clicking,
`
`or dragging the mouse. Such operations are affected by releasing the mouse
`
`button. For example, a mouse click is defined by the release of a mouse button
`
`within a set number of pixels from where it was depressed. A double click is
`
`defined by the second release when clicking twice. Likewise, a click and drag is
`
`
`2 The software, the Lucas Drawing System, had been developed by Lucas
`
`Films to aid in the production of Star Wars.
`
`
`
`- 7 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`depressing the button to select the item, and releasing the mouse button to release it
`
`at the desired location or value.
`
`20.
`
` I developed a Macintosh program that drew graphical icons (or
`
`polygons) on the display.3 The icons changed size base on a numerical value. The
`
`user interface allowed for a window to be displayed that showed the numerical
`
`value as text.
`
`21. Next in 1986, I started consulting at Hewlett Packard (“HP”) where I
`
`became familiar with standard printer description languages and graphic command
`
`languages. During this time, I used X-Windows.
`
`22. Later, in 1988 through 1990, at Tandem (later Compaq, now HP), I
`
`worked with CAD systems and hardware simulators, which used graphical user
`
`interfaces and included pop-up windows that provided textual representations of
`
`values related to graphical displays.
`
`
`3 An article regarding the software was published in MacWorld Magazine
`
`around February 1987. A review was published in 1990 by the Boston Computer
`
`Society, which also showed various features of the user interface. See
`
`http://www.wolfpup.org/misc/MacBaby_Math_review.pdf.
`
`
`
`- 8 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`23.
`
`In 1990, I authored portions of the “Macintosh Programming
`
`Fundamentals: Self-paced Training” course interactive CD-ROM and lab book.
`
`24.
`
`I returned to HP in 1991 where I worked with diagnostic tools,
`
`including exercises and verifiers. During this period, I was involved in testing
`
`various graphics adapters and display devices throughout the HP product line. I
`
`worked with a X-Windows based diagnostic tool that displayed an icon for every
`
`component of the system. The number, type, and locations of the icons were based
`
`on the components actually found in the system. The icons were dynamically
`
`changed to represent the status of the testing.
`
`25.
`
`In 1991 and 1992, at Slate and Apple, I worked with the pen based
`
`tablets and handheld computers including, the NCR tablet and Newton PDA.
`
`26.
`
`In 1993 and 1994, I taught classes for Mentor Graphics to hardware
`
`designers regarding hardware simulation and design verification software. Mentor
`
`Graphics’ CAD system had the features discussed above regarding CAD software.
`
`In addition, I taught users how to customize CAD software to perform complex
`
`custom operations based on a single action with a user input device.
`
`27.
`
`In 1993 and 1994, at Apple I worked with the Apple Media Tool team
`
`and the SK8 team, which included working with state of the art graphic display
`
`systems.
`
`
`
`- 9 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`28.
`
`In the early 1990’s, before the World Wide Web became
`
`commercialized, multimedia technology was becoming state of the art. During this
`
`time, interactive CD-ROMs, early commercial Internet sites, high-resolution color
`
`animation, and digital video were state of the art technologies. While at The Carl
`
`Group, I formed the Multimedia Lab. Projects included porting a program to
`
`automate layout of ball grid assemblies (“BGA”), updating automatic test
`
`equipment software to use state of the art graphical user interfaces, developing
`
`graphic animations, developing multimedia authoring tools and various interactive
`
`CD-ROM titles. My work with multimedia authoring tools included developing
`
`low-level graphics software for both the Macintosh and IBM PC platforms.
`
`29. We sold our multimedia authoring tools to the public and I developed
`
`an interactive user interface, which allowed users to enter and confirm information
`
`including prices and quantities, which resulted in an order being sent to our server.
`
`30. Also in the mid-1990s, we developed a database driven, on-demand
`
`catalog publish system for Sun, which allowed users to configure and order
`
`products via a graphical user interface. At Sun, I used workstations using Open
`
`Look, which was a graphical user interface based on pioneering work at Xerox
`
`PARC, and which was competitive with X Windows, which was being used by
`
`HP.
`
`
`
`- 10 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`31.
`
`In the mid-1990s, I developed a medical communications device that
`
`could transmit medical quality video images over the Internet in real time. This
`
`work included developing various graphical user interfaces. I have patents on
`
`some of this technology as discussed below.
`
`32. During this time, I was familiar with the graphical user interfaces in
`
`various medical devices. These included EKG, ultrasound, and medical records
`
`systems.
`
`33.
`
`In many of these professional assignments, I analyzed the
`
`architecture, function, and operation of software with graphical user interfaces.
`
`34. Prior to being retained in this matter, I have acquired and performed
`
`forensic analysis of several computer systems. In particular, in 1999-2002, I
`
`performed the technical analysis of both copyright and trade secrets in the
`
`Tradescape.com, Inc., et al. v. Shivaram, et al. (“Tradescape”) cases. In those
`
`cases, I reviewed the source code and operations of the market-leading day trading
`
`systems and illicit copies. I also surveyed the current state of the art to address the
`
`trade secrets versus what was publicly known. Tradescape was later acquired by
`
`E*Trade.
`
`35. As part of my review of the operations in the Tradescape engagement,
`
`I personally observered day traders conducting tens of thousands of dollars of
`
`
`
`- 11 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`transactions within seconds. For example, I observered one trader buy 10,000
`
`shares of stock and then immediately buy another 10,000 shares using the same
`
`default quantity (i.e., 10,000) within two seconds. Then, this same trader sold all
`
`20,000 shares at a substantial profit less than a minute later.
`
`36.
`
`I worked on the Datamize v. Fidelity, Scottrade, Interactive Brokers
`
`Group, et al. patent case, which involved user interfaces used by the defendants in
`
`their trading software.
`
`37.
`
`I performed a code review for a patent case, Chicago Board Options
`
`Exchange v. International Securities Exchange, which involved security exchange
`
`trading software.
`
`38. Further, I have extensive experience in designing, developing and
`
`analyzing database, networked systems and their user interfaces. As a result, I
`
`have had access to the type of components and information at issue in this case and
`
`have contemporaneous knowledge of what was publicly known.
`
`39. My Curriculum Vitae identifies over 70 issued patents and over 70
`
`published patent applications for which I am listed as an inventor or assignee.
`
`Several of my inventions include graphical user interfaces and networked client-
`
`server systems, these include:
`
`
`
`- 12 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`• U.S. 8,590,777, Space equipment recognition and control using
`
`handheld devices;
`
`• U.S. 8,500,563, Display, device, method, and computer program for
`
`indicating a clear shot;
`
`• U.S. 8,282,493, Display, device, method, and computer program for
`
`indicating a clear shot;
`
`• U.S. 7,698,653, Graphical user interface including zoom control box
`
`representing image and magnification of displayed image;
`
`• U.S. 7,424,473, System and method for asset tracking with
`
`organization-property-individual model;
`
`• U.S. 7,257,158, System for transmitting video images over a computer
`
`network to a remote receiver;
`
`• U.S. 7,191,462, System for transmitting video images over a computer
`
`network to a remote receiver; and
`
`• U.S. 6,803,931, Graphical user interface including zoom control box
`
`representing image and magnification of displayed image.
`
`
`
`- 13 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`40.
`
`I have reviewed and analyzed numerous patents and prior art systems
`
`through my litigation support work, including patents and prior art related to the
`
`architecture and operation of computer systems including graphics. I have taken a
`
`number of courses offered by the U.S. Patent and Trademark Office and the
`
`Sunnyvale Center for Innovation, Inventions, and Ideas (“Sc[i]3”).
`
`41. Both Federal and State Courts have recognized me as an expert in
`
`computer software including trading systems and graphical user interfaces,
`
`computer architecture, computer hardware, database systems, networks, and
`
`computer forensic science.
`
`42.
`
`In addition, I recently served as a Special Master in a Federal District
`
`Court in Paycom Payroll, LLC v. Richison and Period Financial, which included
`
`financial systems with graphical user interfaces. I have served as a court-appointed
`
`expert in San Jose, CA, in Aspect Communications Corporation v. eConvergent,
`
`Inc. et al., which included financial systems with graphical user interfaces, and in
`
`Ribeiro v. Weichselbaumer, which included financial and graphical analysis.
`
`A. Testifying Engagements
`43. Cases in which I have testified as an expert witness at trial or by
`
`deposition during the previous four years are identified as:
`
`
`
`- 14 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`Utah State 3rd District Court, Salt Lake County, 140900780, Davis
`and Carlos v. HireVue, Inc. et al.
`
`Eastern District of North Carolina, 10-cv-00025, SAS Institute Inc. v.
`World Programming Limited
`
`Central District of California, Los Angeles, 13-ml-02461, MyKey
`Technology Inc. Patent Litigation
`
`District of Delaware, 13-cv-1943, Parallel Networks v. A10 Networks,
`and 13-cv-2001, Parallel Networks v. F5 Networks
`
`U.S. Patent Trial and Appeal Board, CBM2014-00131, 133, 135, and
`137, TD Ameritrade v. Trading Technologies International
`
`Southern District of New York, 14-cv-07616, Sanford and DYMO v.
`Esselte, 14-cv-07616
`
`Northern District of Ohio, 7-cv-03565, Hickok Inc. v. SysTech
`International, LLC
`
`Eastern District of Virginia, Alexandria, 1:11-cv-01203, Reporting
`Technologies, Inc. v. Emma, Inc.
`
`Central District of California, Los Angeles, 2:10-cv-07678,
`Futurelogic, Inc. v. Nanoptix, Inc.
`
`Southern District of Texas, Houston, 3:08-cv-119,
`Wellogix v. Accenture
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`•
`
`
`
`- 15 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`•
`
`•
`
`Northern District of California, San Jose, 09-cv-01808,
`Embry v. Acer America
`
`Southern District of Texas, Houston, 4:09-cv-1511,
`Wellogix v. BP
`
`44. Also the following is the case identification of the cases where I have
`
`provided recent reports or declarations but have not testified:
`
`•
`
`•
`
`•
`
`•
`
`•
`
`Northern District of California, San Francisco, 15-cv-01267, Lilith
`
`Games vs. uCool
`
`Central District of California, Los Angeles, 14-cv-6119, Miller v.
`
`Fuhu
`
`• U.S. Patent Trial and Appeal Board, IPR2015-01078 and IPR2015-
`
`01080, GoPro, Inc. v. Contour, LLC
`
`District of Minnesota, 12-cv-1357, Twin City Fan Companies, Ltd. v.
`
`FPT Software
`
`Superior Court of California, Riverside County, Indio, INC 1108128,
`
`Malanche v. Eisenhower Medical Center
`
`Central District of California, Western Division, 2:12-cv-05257,
`
`Innersvingen AS v. Sports Hoop, Inc.
`
`
`
`- 16 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`• Western District of Oklahoma, 09-cv-488, Paycom Payroll, LLC v.
`
`Richison and Period Financial Corporation
`
`45. Some additional prior cases related to software interfaces, graphics,
`
`and patent analysis include: Konrad v. General Motors, et al.; ACTV, Inc. and
`
`HyperTV Networks, Inc. v. The Walt Disney Co., ABC, Inc. and ESPN, Inc.; and
`
`Collaboration Properties v. Polycom.
`
`46.
`
`In Konrad v. General Motors, et al., I analyzed the source code and
`
`operation of data-driven web sites for many of the largest companies in America.
`
`The graphical user interfaces displayed current quantity and pricing, and allowed
`
`order placement and confirmation for airline seats, rental cars, and hotel rooms.
`
`Many of these systems allowed for available commodities to be display in order of
`
`price or other values.
`
`47.
`
`In ACTV v. Disney, I analyzed the Disney (ABC and ESPN)
`
`interactive television system that included an interactive graphical user interface.
`
`48.
`
`In Collaboration Properties v. Polycom, I analyzed video
`
`conferencing systems including telephony and graphics output systems and
`
`standards.
`
`
`
`- 17 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`49. My Curriculum Vitae contains further details on my education,
`
`experience, publications, and other qualifications to render an expert opinion. My
`
`work on this case is being billed at a rate of $495.00 per hour, with reimbursement
`
`for actual expenses. My compensation is not contingent upon the outcome of this
`
`covered business method review or the litigation involving the ’411 Patent.
`
`II. MY UNDERSTANDING OF CLAIM CONSTRUCTION
`50.
`I understand that, during a covered business method review, claims
`
`are to be given their broadest reasonable construction in light of the specification
`
`as would be read by a person of ordinary skill in the relevant art.
`
`I. MY UNDERSTANDING OF OBVIOUSNESS
`
`51.
`
`I am not a lawyer and will not provide any legal opinions. Although I
`
`am not a lawyer, I have been advised certain legal standards are to be applied by
`
`technical experts in forming opinions regarding meaning and validity of patent
`
`claims.
`
`52.
`
`I understand that a patent claim is invalid if the claimed invention
`
`would have been obvious to a person of ordinary skill in the field at the time of the
`
`purported invention, which is often considered the time the application was filed.
`
`This means that even if all of the requirements of the claim cannot be found in a
`
`
`
`- 18 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`single prior art reference that would anticipate the claim, the claim can still be
`
`invalid.
`
`53. As part of this inquiry, I have been asked to consider the level of
`
`ordinary skill in the field that someone would have had at the time the claimed
`
`invention was made. In deciding the level of ordinary skill, I considered the
`
`following:
`
`• the levels of education and experience of persons working in the field;
`
`• the types of problems encountered in the field; and
`
`• the sophistication of the technology.
`
`54. To obtain a patent, a claimed invention must have, as of the priority
`
`date, been nonobvious in view of the prior art in the field. I understand that an
`
`invention is obvious when the differences between the subject matter sought to be
`
`patented and the prior art are such that the subject matter as a whole would have
`
`been obvious at the time the invention was made to a person having ordinary skill
`
`in the art.
`
`55.
`
`I understand that to prove that prior art or a combination of prior art
`
`renders a patent obvious, it is necessary to (1) identify the particular references
`
`that, singly or in combination, make the patent obvious; (2) specifically identify
`
`which elements of the patent claim appear in each of the asserted references; and
`
`
`
`- 19 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`(3) explain how the prior art references could have been combined in order to
`
`create the inventions claimed in the asserted claim.
`
`56.
`
`I understand that certain objective indicia can be important evidence
`
`regarding whether a patent is obvious or nonobvious. Such indicia include:
`
`commercial success of products covered by the patent claims; a long-felt need for
`
`the invention; failed attempts by others to make the invention; copying of the
`
`invention by others in the field; unexpected results achieved by the invention as
`
`compared to the closest prior art; praise of the invention by the infringer or others
`
`in the field; the taking of licenses under the patent by others; expressions of
`
`surprise by experts and those skilled in the art at the making of the invention; and
`
`the patentee proceeded contrary to the accepted wisdom of the prior art.
`
`III. LEVEL OF ORDINARY SKILL IN THE ART
`57. A person of ordinary skill in the art at the time of the alleged
`
`invention (“POSA”) would have had the equivalent of a Bachelor’s degree or
`
`higher in computer science or computer engineering and at least 2 years working
`
`experience designing and/or programming graphical user interfaces, and direct or
`
`indirect experience with trading or related systems. Experience could take the place
`
`of some formal training, as domain knowledge and user interface design skills may
`
`be learned on the job. This description is approximate, and a higher level of
`
`education or skill might make up for less education and vice versa.
`
`
`
`- 20 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`IV. BACKGROUND OF THE TECHNOLOGIES DISCLOSED IN THE
`’411 PATENT
`A. Computer Hardware, Software, and Firmware
`
`58. Originally, computers were composed only of physical circuits,
`
`known as hardware,4 that were programmed by physically configuring wires (like a
`
`telephone switch board operator). Computer programs (a series of computer
`
`instructions) stored in memory are known as software,5 because they can be
`
`modified much more easily than hardware. In the late 1970’s, PCs became
`
`commercial products (such as the Apple II in 1977). In some PCs, a bootstrap
`
`loader and other basic input and output programs were permanently stored in
`
`hardware chips, known as read-only memories (“ROM”). These programs
`
`recorded indelibly in ROM were no longer “soft” enough to be modified, but could
`
`be changed by replacing one socketed ROM with another ROM containing another
`
`4 Hardware is the tangible components of a computing system, such as
`
`vacuum tubes, wires, circuit boards and other discrete components.
`
`5 Software is a “generic term for those components of a computer system
`
`that are intangible rather than physical. It is most commonly used to refer to the
`
`programs executed by a computer system as distinct from the physical hardware of
`
`that computer system, and to encompass both symbolic and executable forms for
`
`such programs.” (Exhibit 1037, Oxford Dictionary ‘software’)
`
`
`
`- 21 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`version of the program. Because they are intimately bonded with the hardware,
`
`these programs are called firmware.6
`
`A.
`
`Input/Output Adapters and User Input Devices
`
`59.
`
`In addition to the CPU and main memory, a computer usually has
`
`various input and output (or I/O) devices. I/O devices include disks, tapes,
`
`keyboards and other input devices, displays, printers, and communications devices.
`
`Disks and tapes are also known as memory or storage, and (as discussed above) are
`
`distinguished from main memory by the term “secondary memory.” Other input
`
`devices include mice, pens, tablets, touch pads, touch screens, and cameras.
`
`B. Display, Pixel, and Video Frame
`
`60. When Philo T. Farnsworth invented electronic television in the late
`
`1920’s, he modified a vacuum tube to control the movement of an electron beam
`
`from the cathode (the negative terminal) on the back the tube to scan across the
`
`screen on the other side of the tube (the anode, or positive terminal). Where the
`
`beam hits the glass (and coating of phosphors) the glass glows. Magnetic coils
`
`
`6 Generally, firmware refers to CPU instructions stored in a programmable
`
`ROM.
`
`
`
`- 22 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`deflect the electron beam. In television, the entire front of the tube is scanned
`
`repetitively in a fixed pattern called a raster. The intensity of the electron beam is
`
`modified to change the brightness on point along the raster scan. The result points
`
`on the screen are called picture elements, or “pixels.”
`
`61.
`
`In the United States, the National Television System Committee
`
`(“NTSC”) standard defines a raster of 525 scan lines, which refreshes 30 times a
`
`second. Each time the video screen is refreshed the contents is a frame of video
`
`data. The frame is interlaced with odd and even line fields with a field changing
`
`60 times a second. The NTSC standard also set a 4:3 aspect ratio. Even though
`
`there are 525 lines, the visible area is generally 480 lines high which results in an
`
`array of pixels which 640 pixels wide, or 640 x 480 pixel resolution.
`
`C. Bits, Bitmaps, Pixmaps, and Graphic Images
`
`62. A binary digit (“bit”) can have a value of zero (0) or one (1).
`
`Computer digital logic uses zero to represent “false” and one to represent “true.”
`
`Thus 0 is false and 1 is true.
`
`
`
`- 23 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`63. A bit map originally was a data structure having one bit for each
`
`pixel.7 They are now referred to as Black and White (“B&W”) bitmaps or two
`
`color bitmaps. A one would turn on the electron beam for that pixel and a zero
`
`would turn off the electron beam. A bitmap could be created to define a character.
`
`For example, in color graphics adapter (“CGA”) a character was defined as an 8x8
`
`bitmap.
`
`64. The same concept was applied to create a color bitmap, or pixel map
`
`(“pixmap”) where more than one bit represents the color for each pixel. Like
`
`B&W bitmaps, a color bitmap is a consecutive array of pixel data, where the more
`
`than one bit makes up the array elements. In some contexts, the term bitmap is
`
`used to refer to pixmaps, as well as B&W bitmaps.
`
`
`7 In 1984, when the Apple Macintosh was released, it had a black and white
`
`screen and its screen buffer was a true bitmap, named screenBits, in a special
`
`location in main memory. “The Macintosh screen itself is one large visible bit
`
`image. The upper 21,888 bytes of memory are displayed as a matrix of 175,104
`
`pixels on the screen, each bit corresponding to one pixel . . . The screen is 342
`
`pixels tall and 512 pixels wide” (Exhibit 1036, Inside Macintosh, Promotional
`
`Edition, p. 12).
`
`
`
`- 24 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`65. A bitmap can also be used to store a graphic image as an array of
`
`color values for each point in the image. For example, the Macintosh used bitmaps
`
`for icons in it Graphical User Interface (“GUI”). Further, Windows and OS/2 have
`
`a bitmap file format (.BMP). JPEG, TIFF, GIF, and PNG also store bitmaps in a
`
`compressed format.
`
`66. Graphic images can also be drawn (or rendered) using graphic
`
`commands. Rectangles, circles, and other polygons can be drawn having different
`
`sizes and colors.
`
`V. OVERVIEW OF THE ’411 PATENT
`
`67. The ’411 Patent is directed to a “method and system for reducing the
`
`time it takes for a trader to place a trade when electronically trading on an
`
`exchange, thus increasing the likelihood that the trader will have orders filled at
`
`desirable prices and quantities.” (’411 Patent , Abstract.) The ’411 Patent refers to
`
`a trading system called “Mercury” that allegedly “ensure[d] fast and accurate
`
`execution of trades by displaying market depth on a vertical or horizontal plane,
`
`which fluctuates logically up or down, left or right across the plane as the market
`
`prices fluctuates. This allows the trader to trade quickly and efficiently.” (Id.)
`
`68. The specification further stresses that “the present invention is
`
`directed to a graphical user interface for displaying the market depth of a
`
`
`
`- 25 -
`
`
`
`
`
`U.S. Patent No. 7,676,411
`
`commodity traded in a market, including a dynamic display for a plurality of bids
`
`and for a plurality of asks in the market for the commodity and a static display of
`
`prices corresponding to the plurality of bids and asks.” (Id. at 3:15-20.) “Also
`
`described herein is a method and system for placing trade orders using such
`
`displays.” (Id. at 3:22-24.)
`
`69.
`
` A bid is an order to buy a financial instrument or security, such as a
`
`stock, a stock option, or a future, at a specific price. An ask, sometimes called an
`
`offer, is an order to sell a financial instrument at a specific price.
`
`70. For example, FIG. 3 of the ’411 Patent (reproduced below)
`
`graphically shows bids and asks. The “Mercury display is a static vertical column
`
`of prices with the bid and ask quantities displayed in vertical columns to the side of
`
`the price column and aligned with the corresponding bid and ask prices.” (Id. at
`
`7:49-53.) “Mercury also provides an order entry system, market grid, fill window
`
`and summary of market orders in one simple w
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
