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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.,
`Petitioners
`
`V.
`
`TRADE TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`____________________
`
`Patent No. 7,533,056
`____________________
`
`
`DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITION FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,533,056
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`CBM of U.S. Pat. No. 7,533,056
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`TRADING TECH EXHIBIT 2023
`IBG ET AL. v. TRADING TECH
`CBM2015-00181
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`
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`I, Kendyl A. Román, declare as follows:
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`1.
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`I have been engaged by Sterne, Kessler, Goldstein & Fox P.L.L.C. on
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`behalf of Petitioner, TD Ameritrade Holding Corp., for the above-captioned
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`covered business method review proceeding. I understand that this proceeding
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`involves United States Patent 7,533,056, entitled “User interface for an electronic
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`trading system,” by Richard W. Friesen, filed May 3, 2006 and issued May 12,
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`2009, (the “‘056 Patent”). I understand that the ‘056 Patent is currently assigned to
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`Trading Technologies International, Inc. (“TTI”).
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`2.
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`I understand the ‘056 Patent is a continuation of Application No.
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`09/289,550, filed on April 9, 1999, issued as U.S. Patent No. 7,212,999. For
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`purposes of the covered business method review, I assume the earliest possible
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`priority date of the ‘056 Patent is the April 9, 1999 filing date of U.S. Patent No.
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`7,212,999.
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`3.
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`I have reviewed and am familiar with the specification of the ‘056
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`Patent. I understand that the ‘056 Patent has been provided as Exh. 1001. I will
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`cite to the specification using the following format (‘056 Patent, 1:1-10). This
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`example citation points to the ‘056 Patent specification at column 1, lines 1-10.
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`4.
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`I have reviewed and am familiar with the file history of the ‘056
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`Patent. I understand that the file history has been provided as Exh. 1002.
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`5.
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`I have also reviewed and am familiar with the following prior art used
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`in the Petition for Covered Business Method Review of the ‘056 Patent:
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`• A certified translation of “System for Buying and Selling Futures and
`Options Transaction Terminal Operational Guidelines” (“TSE”) and
`the original figures in the Japanese-language original. The translation
`is Exhibit 1004, and the original is Exhibit 1003.
`• U.S. Patent No. 5,375,055 to Togher et al. (“Togher”), Exhibit 1008.
`• U.S. Patent No. 5,619,631 to Schott (“Schott”), Exhibit 1009.
`• U.S. Patent No. 5,136,501 to Silverman et al. (“Silverman”), Exhibit
`1010.
`• U.S. Patent No. 5,414,809 to Hogan (“Hogan”), Exhibit 1011.
`A complete listing of additional materials considered and relied upon in
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`preparation of my declaration is provided as Exh. 1034. I have relied on these
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`materials to varying degrees. Citations to these materials that appear below are
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`meant to be exemplary but not exhaustive.
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`6.
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`The ‘056 Patent describes a graphical user interface for electronic
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`trading systems. ‘056 Patent, Title, 1:15-17. I am familiar with the technology
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`described in the ‘056 Patent as of the earliest possible priority date of the ‘056
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`Patent (April 9, 1999).
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`7. I have been asked to provide my technical review, analysis,
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`insights and opinions regarding the ‘056 Patent and the above-noted references
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`that form the basis for the grounds of rejection set forth in the petition for Covered
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`Business Method Review of the ‘056 Patent.
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`I.
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`QUALIFICATIONS
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`8.
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`See my Curriculum Vitae, provided as Exh. 1033, for a listing of my
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`qualifications. This includes a list of publications for the past 10 years or more.
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`9. My expertise qualifies me to do the type of analysis required in this
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`case. Of particular relevance, I have been involved in the design, implementation,
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`testing, and analysis of computer software, firmware, and hardware for over thirty
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`years, including software architecture, graphical user interfaces, trading systems,
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`and other networked, data-driven, client-server systems. My work has included
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`analysis of trading systems including source code and user interfaces. In addition, I
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`have practical experience in the design and programming of a variety of computer
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`systems ranging from handheld devices, to laptops and desktop computers, to large
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`multi-layer networked database systems.
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`10. As a freshman at Brigham Young University (“BYU”) in 1976, I
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`started writing programs for IBM computers.
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`11.
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`In 1980, I worked with Apple II computers and wrote computer
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`programs having graphic user interfaces.
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`12.
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`In the late 1960’s and 1970’s the University of Utah was known for its
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`pioneering work in computer graphics (and the Internet1). At BYU, I got involved
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`with computer graphics and wrote graphics programs. Many of my BYU
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`professors had been at the University of Utah during its computer science
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`pioneering years. One of my BYU professors, Alan Ashton, and a fellow
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`computer science student, Bruce Bastian, worked together on word processing
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`software with graphical display. Later, Professor Ashton and Bruce Bastian
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`founded WordPerfect.
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`13.
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`I graduated with High Honors from Brigham Young University where
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`I received a Bachelor of Science degree in Computer Science. My formal studies
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`included computer architecture, computer programming, programming languages,
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`algorithms, operating systems, database systems, and digital logic design.
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`14.
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`In 1981, I worked at International Business Machines (“IBM”) in San
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`Jose, CA. At IBM, I had a graphics display on my desk and wrote programs that
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`displayed custom graphics. During my employment at IBM, the IBM PC was
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`released. The IBM PC also supported graphical user interfaces.
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`
`
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`1 In 1969, University of Utah was one of the first four nodes on the Internet.
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`15.
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`In 1982, at Dialogic, I improved the performance of the Computer
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`Aided Design (“CAD”) software.2 The CAD software drew polygons on the
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`graphical display and placed them along value axes.
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`16.
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`In this timeframe, I had experience with Tandy computers, including
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`the TRS-80, and with Commodore VIC 20 computers, which supported graphical
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`user interfaces.
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`17.
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`In 1984, I starting writing programs for the Apple Lisa and
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`Macintosh, which had a sophistical graphical user interface built into the firmware
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`and operating system. Both Lisa and Macintosh used a one button mouse as a
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`pointing device. The user controls various operations by clicking, double clicking,
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`or dragging the mouse. Such operations are affected by release the mouse button.
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`For example, a mouse click is defined by the release of a mouse button within a set
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`number of pixels from where it was depressed. A double click is defined by the
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`second release when clicking twice. Likewise, a click and drag is depressing the
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`
`
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`2 The software, the Lucas Drawing System, had been developed by Lucas
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`Films to aid in the production Star Wars.
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`button to select the item, and releasing the mouse button to release it at the desired
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`location or value.
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`18.
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` I developed a Macintosh program that drew graphical icons (or
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`polygons) on the display.3 The icons changed size base on a numerical value. The
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`user interface allowed for a window to be displayed that showed the numerical
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`value as text.
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`19. Next in 1986, I started consulting at Hewlett Packard (“HP”) where I
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`became familiar with standard printer description languages and graphic command
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`languages. During this time I used X-Windows.
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`20. Later, in 1988 through 1990, at Tandem (now Compaq, now HP), I
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`worked with CAD systems and hardware simulators, which used graphical user
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`interfaces and included pop-up windows that provided textual representations of
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`values related to graphical displays.
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`
`
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`3 An article regarding the software was published in MacWorld Magazine
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`around February 1987. A review was published in 1990 by the Boston Computer
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`Society, which also showed various features of the user interface. See
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`http://www.wolfpup.org/misc/MacBaby_Math_review.pdf.
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`21.
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`In 1990, I authored portions of the Macintosh Programming
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`Fundamentals: Self-paced Training course interactive CD-ROM and lab book.
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`22.
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`I returned to HP in 1991 where I worked with diagnostic tools,
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`including exercises and verifiers. During this period, I was involved in testing
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`various graphics adapters and display devices throughout the HP product line. I
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`worked with a X-Windows based diagnostic tool that displayed an icon for every
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`component of the system. The number, type, and locations of the icons were based
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`on the components actually found in the system. The icons were dynamically
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`changed to represent the status of the testing.
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`23.
`
`In 1991 and 1992, at Slate and Apple, I worked with the pen based
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`tablets and handheld computers including, the NCR tablet and Newton PDA.
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`24.
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`In 1993 and 1994, I taught classes for Mentor Graphics to hardware
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`designers regarding hardware simulation and design verification software. Mentor
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`Graphics’ CAD system had the features discussed above regarding CAD software.
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`In addition, I taught users how to customize CAD software to perform complex
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`custom operations based on a single action with a user input device.
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`25.
`
`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
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`systems.
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`26.
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`In the early 1990s, before the World Wide Web became
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`commercialized, multimedia technology was becoming state of the art. During this
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`time, interactive CD-ROMs, early commercial Internet sites, high-resolution color
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`animation, and digital video were state of the art technologies. While at The Carl
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`Group, I formed the Multimedia Lab. Projects included porting a program to
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`automate layout of ball grid assemblies (BGA), updating automatic test equipment
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`software to use state of the art graphical user interfaces, developing graphic
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`animations, developing multimedia authoring tools, and various interactive CD-
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`ROM titles. My work with multimedia authoring tools included developing low-
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`level graphics software for both the Macintosh and IBM PC platforms.
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`27. We sold our multimedia authoring tools to the public and I developed
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`an interactive user interface, which allowed users to enter and confirm information
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`including prices and quantities, which resulted in an order being sent to our server.
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`28. Also in the mid-1990s, we developed a database driven, on-demand
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`catalog publish system for Sun, which allowed users to configure and order
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`products on via a graphical user interface. At Sun, I used workstations using Open
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`Look, which was a graphical user interface based on pioneering work at Xerox
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`PARC, and which was competitive with X Windows which was being used by
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`Hewlett Packard.
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`29.
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`In the mid-1990s, I developed a medical communications device that
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`could transmit medical quality video images over the Internet in real time. This
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`work included developing various graphical user interfaces. I have patents on
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`some of this technology as discussed below.
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`30. During this time, I was familiar with the graphical user interfaces in
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`various medical devices. These included EKG, ultrasound, and medical records
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`systems.
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`31.
`
`In many of these professional assignments, I analyzed the
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`architecture, function, and operation of software with graphical user interfaces.
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`32. Prior to being retained in this matter, I have acquired and performed
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`forensic analysis of several computer systems. In particular, in 1999-2002, I
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`performed the technical analysis of both copyright and trade secrets in the
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`Tradescape.com, Inc., et al. v. Shivaram, et al. cases. In those cases, I reviewed the
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`source code and operations of the market-leading day trading systems and illicit
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`copies. I also surveyed the current state of the art to address the trade secrets
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`versus what was publicly known. Tradescape was later acquired by E*Trade. As
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`part of my review of the operations in the Tradescape engagement, I personally
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`observed day traders conducting tens of thousands of dollars of transactions within
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`seconds. For example, I observed one trader buy 10,000 shares of stock and then
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`immediately buy another 10,000 shares using the same default quantity (i.e.,
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`10,000) within two seconds. Then, this same trader sold all 20,000 shares at a
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`substantial profit less than a minute later.
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`33.
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`I worked on the Datamize v. Fidelity, Scottrade, Interactive Brokers
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`Group, et al. patent case, which involved user interfaces used by the defendants in
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`their trading software.
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`34.
`
`I performed a code review for a patent case, Chicago Board Options
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`Exchange v. International Securities Exchange, which involved security exchange
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`trading software.
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`35. Further, I have extensive experience in designing, developing and
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`analyzing database, networked systems and their user interfaces. As a result, I
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`have had access to the type of components and information at issue in this case and
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`have contemporaneous knowledge of what was publicly known.
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`36. My Curriculum Vitae, which is Exh. 1033, identifies over 60 issued
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`patents and over 60 published patent applications for which I am listed as an
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`inventor or assignee. Several of my inventions include graphical user interfaces
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`and networked client-server systems, including:
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`• U.S. Pat. No. 8,590,777, Space equipment recognition and control using
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`handheld devices
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`• U.S. Pat. No. 8,500,563, Display, device, method, and computer program for
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`indicating a clear shot
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`• U.S. Pat. No. 8,282,493, Display, device, method, and computer program for
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`indicating a clear shot
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`• U.S. Pat. No. 7,698,653, Graphical user interface including zoom control
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`box representing image and magnification of displayed image
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`• U.S. Pat. No. 7,424,473, System and method for asset tracking with
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`organization-property-individual model
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`• U.S. Pat. No. 7,257,158, System for transmitting video images over a
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`computer network to a remote receiver
`
`• U.S. Pat. No. 7,191,462, System for transmitting video images over a
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`computer network to a remote receiver
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`• U.S. Pat. No. 6,803,931, Graphical user interface including zoom control
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`box representing image and magnification of displayed image
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`37.
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`I have reviewed and analyzed numerous patents and prior art systems
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`through my litigation support work, including patents and prior art related to the
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`architecture and operation of computer systems including graphics. I have taken a
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`number of courses offered by the U.S. Patent and Trademark Office and the
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`Sunnyvale Center for Innovation, Inventions, and Ideas (Sc[i]3).
`
`38. Both Federal and State Courts have recognized me as an expert in
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`computer software including trading systems and graphical user interfaces,
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`computer architecture, computer hardware, database systems, networks, and
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`computer forensic science.
`
`39.
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`In addition, I recently served as a Special Master in a Federal District
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`Court in Paycom Payroll, LLC v. Richison and Period Financial, which included
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`financial systems with graphical user interfaces, and have served as a court-
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`appointed expert in San Jose, CA in Aspect Communications Corporation v.
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`eConvergent, Inc. et al., which included financial systems with graphical user
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`interfaces, and in Ribeiro v. Weichselbaumer, which include financial and
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`graphical analysis.
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`A. Testifying Engagements
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`40. Cases in which I have testified as an expert witness at trial or by
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`deposition during the previous four years are identified as:
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`• Eastern District of Virginia, Alexandria, 1:11-cv-01203, Reporting
`Technologies, Inc. v. Emma, Inc.
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`• 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
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`• Northern District of California, San Jose, 09-cv-01808,
`Embry v. Acer America
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`• Southern District of Texas, Houston, 4:09-cv-1511,
`Wellogix v. BP
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`41. Also the following is the case identification of the cases where I have
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`provided recent reports or declarations but have not testified:
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`• District of Minnesota, 12-cv-1357, Twin City Fan Companies, Ltd. v.
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`FPT Software
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`• Superior Court of California, Riverside County, Indio, INC 1108128,
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`Malanche v. Eisenhower Medical Center
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`• Central District of California, Western Division, 2:12-cv-05257,
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`Innersvingen AS v. Sports Hoop, Inc.
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`• Western District of Oklahoma, 09-cv-488, Paycom Payroll, LLC v.
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`Richison and Period Financial Corporation
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`42. Some additional prior cases related to software interfaces, graphics,
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`and patent analysis, include: Konrad v. General Motors, et al.; ACTV, Inc. and
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`HyperTV Networks, Inc. v. The Walt Disney Co., ABC, Inc. and ESPN, Inc.; and
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`Collaboration Properties v. Polycom.
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`43.
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`In Konrad v. General Motors, et al., I analyzed the source code and
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`operation of data-driven web sites for many of the largest companies in America.
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`The graphical user interfaces displayed current quantity and pricing, and allowed
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`order placement and confirmation for airline seats, rental cars, and hotel rooms.
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`Many of these systems allowed for available commodities to be display in order of
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`price or other values.
`
`44.
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`In ACTV v. Disney, I analyzed the Disney (ABC and ESPN)
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`interactive television system that included an interactive graphical user interface.
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`45.
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`In Collaboration Properties v. Polycom, I analyzed video
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`conferencing systems including telephony and graphics output systems and
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`standards.
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`46. My Curriculum Vitae is included as Exh. 1033, which contains further
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`details on my education, experience, publications, and other qualifications to
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`render an expert opinion. My work on this case is being billed at a rate of $495.00
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`per hour, with reimbursement for actual expenses. My compensation is not
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`contingent upon the outcome of this covered business method review or the
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`litigation involving the ‘056 Patent.
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`II. MY UNDERSTANDING OF CLAIM CONSTRUCTION
`47.
`I understand that, during a covered business method review, claims
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`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.
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`I. MY UNDERSTANDING OF OBVIOUSNESS
`
`48.
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`I am not a lawyer and will not provide any legal opinions. Although I
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`am not a lawyer, I have been advised certain legal standards are to be applied by
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`technical experts in forming opinions regarding meaning and validity of patent
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`claims.4
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`49.
`
`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
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`purported invention, which is often considered the time the application was filed.
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`This means that even if all of the requirements of the claim cannot be found in a
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`single prior art reference that would anticipate the claim, the claim can still be
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`invalid.
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`50. As part of this inquiry, I have been asked to consider the level of
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`ordinary skill in the field that someone would have had at the time the claimed
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`invention was made. In deciding the level of ordinary skill, I considered the
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`following:
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`• the levels of education and experience of persons working in the field;
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`• the types of problems encountered in the field; and
`
`
`
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`4 I have relied on the Federal Circuit Bar Association Model Patent Jury
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`Instructions, February 18, 2010, as well as my own experience regarding cited
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`cases.
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`• the sophistication of the technology.
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`51. To obtain a patent, a claimed invention must have, as of the priority
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`date, been nonobvious in view of the prior art in the field. I understand that an
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`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.
`
`52.
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`I understand that to prove that prior art or a combination of prior art
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`renders a patent obvious, it is necessary to (1) identify the particular references
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`that, singly or in combination, make the patent obvious; (2) specifically identify
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`which elements of the patent claim appear in each of the asserted references; and
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`(3) explain how the prior art references could have been combined in order to
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`create the inventions claimed in the asserted claim.
`
`53.
`
`I understand that certain objective indicia can be important evidence
`
`regarding whether a patent is obvious or nonobvious. Such indicia include:
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`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
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`invention by others in the field; unexpected results achieved by the invention as
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`compared to the closest prior art; praise of the invention by the infringer or others
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`in the field; the taking of licenses under the patent by others; expressions of
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`surprise by experts and those skilled in the art at the making of the invention; and
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`the patentee proceeded contrary to the accepted wisdom of the prior art.
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`III. LEVEL OF ORDINARY SKILL IN THE ART
`
`54. Based on the considerations I listed above, I conclude that one of
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`ordinary skill in the art at the time of the alleged invention (i.e., in the April 9,
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`1999 timeframe) would have had the equivalent of a Bachelor’s degree or higher in
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`computer science and at least 2 years working experience designing graphical user
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`interfaces, and direct or indirect experience with trading or related systems.
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`Experience could take the place of some formal training, as domain knowledge and
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`user interface design skills may be learned on the job.
`
`IV. BACKGROUND OF THE TECHNOLOGIES DISCLOSED IN THE
`‘056 PATENT
`A. Computer Hardware, Software, and Firmware
`
`55. Originally, computers were composed only of physical circuits,
`
`known as hardware,5 that were programmed by physically configuring wires (like a
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`
`
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`5 Hardware is the tangible components of a computing system, such as
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`vacuum tubes, wires, circuit boards and other discrete components.
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`telephone switch board operator). Computer programs (a series of computer
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`instructions) stored in memory are known as software,6 because they can be
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`modified much more easily than hardware. In the late 1970s, personal computers
`
`(PCs) became commercial products (such as the Apple II in 1977). In some PCs, a
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`bootstrap loader and other basic input and output programs were permanently
`
`stored in hardware chips, known as read-only-memories (“ROM”). These
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`programs recorded indelibly in ROM were no longer “soft” enough to be modified,
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`but could be changed by replacing one socketed ROM with another ROM
`
`containing another version of the program. Because they are intimately bonded
`
`with the hardware, these programs are called firmware.7
`
`
`
`
`6 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
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`programs executed by a computer system as distinct from the physical hardware of
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`that computer system, and to encompass both symbolic and executable forms for
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`such programs.” (Oxford Dictionary, ‘software’)
`
`7 Generally, firmware refers to CPU instructions stored in a programmable
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`ROM.
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`
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`A.
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`Input/Output Adapters and User Input Devices
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`56.
`
`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
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`devices include mice, pens, tablets, touch pads, touch screens, and cameras.
`
`B. Display, Pixel, and Video Frame
`
`57. 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
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`screen on the other side of the tube (the anode, or positive terminal). Where the
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`beam hits the glass (and coating of phosphors) the glass glows. Magnetic coils
`
`deflect the electron beam. In television, the entire front of the tube is scanned
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`repetitively in a fixed pattern called a raster. The intensity of the electron beam is
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`modified to change the brightness on point along the raster scan. The result points
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`on the screen are called picture elements, or “pixels.”
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`58.
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`In the United States the National Television System Committee
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`(“NTSC”) standard defines a raster of 525 scan lines, which refresh at 30 times a
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`second. Each time the video screen is refreshed the contents is a frame of video
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`data. The frame is interlaced with odd and even line fields with a field changing
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`60 times a second. The NTSC standard also set a 4:3 aspect ratio. Even though
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`there are 525 lines, the visible area is generally 480 lines high which results in an
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`array of pixels which 640 pixels wide, or 640 x 480 pixel resolution.
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`C. Bits, Bitmaps, Pixmaps, and Graphic Images
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`59. A binary digit (“bit”) can have a value of zero (0) or one (1).
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`Computer digital logic uses zero to represent “false” and one to represent “true”,
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`thus 0 is false and 1 is true.
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`60. A bit map originally was a data structure having one bit for each
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`pixel.8 This are now referred to as Black and White (“B&W”) bitmaps, or two
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`
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`8 In 1984, when the Apple Macintosh was released, it had a black and white
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`screen and its screen buffer was a true bitmap, named screenBits, in a special
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`location in main memory. “The Macintosh screen itself is one large visible bit
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`image. The upper 21,888 bytes of memory are displayed as a matrix of 175,104
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`pixels on the screen, each bit corresponding to one pixel…The screen is 342 pixels
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`tall and 512 pixels wide” (Inside Macintosh, Promotional Edition, p. 12).
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`color bitmaps. A one would turn on the electron beam for that pixel and a zero
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`would turn off the electron beam. A bitmap could be created to define a character.
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`For example, in CGA a character was defined as an 8x8 bitmap.
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`61. The same concept was applied to create a color bitmap, or pixel map
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`(“pixmap”) where more than one bit represents the color for each pixel. Like
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`B&W bitmaps, a color bitmap is a consecutive array of pixel data, where there
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`more than one bit makes up the array elements. In some contexts, the term bitmap
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`is used to refer to pixmaps, as well as B&W bitmaps.
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`62. A bitmap can also be used to store a graphic image as an array of
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`color values for each point in the image. For example, the Macintosh used bitmaps
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`for icons in it Graphical User Interface (GUI). Further, Windows and OS/2 have a
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`bitmap file format (.BMP). JPEG, TIFF, GIF, and PNG also store bitmaps in a
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`compressed format.
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`63. Graphic images can also be drawn (or rendered) using graphic
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`commands. Rectangles, circles, and other polygons can be drawn having different
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`sizes and colors.
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`V. OVERVIEW OF THE ‘056 PATENT
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`64. The abstract summarized the invention as follows:
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`A user interface for an electronic trading exchange is provided which allows
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`a remote trader to view in real time bid orders, offer orders, and trades for an
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`item, and optionally one or more sources of contextual data. … Each client
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`terminal displays all of the outstanding bids and offers for an item, allowing
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`the trader to view trends in orders for an item. A priority view is provided in
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`which orders are displayed as tokens at locations corresponding to the values
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`of the orders. The size of the tokens reflects the quantity of the orders. An
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`alternate view positions order icons at a location which reflects the value and
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`quantity of the order. (‘056 Abstract)
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`65. The Summary of the Invention starts with, “The present invention is a
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`user interface for an electronic trading system that allows a remote trader to view
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`trends in the orders for an item, and provides the trading information in an easy to
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`see and interpret graphical format.” (‘056 2:8-11). Further, “Thus, in accordance
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`with the present invention, each client terminal displays all of the outstanding bids
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`and offers for an item, in contrast to the conventional systems and methods in
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`which only the highest bid and lowest offer were known to the individual trader.”
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`(‘056 2:19-24)
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`66.
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` A bid is an order to buy a financial instrument or security, such as a
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`stock, a stock option, or a future, at a specific price.
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`67. An offer, sometimes called an ask, is an order to sell a financial
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`instrument at a specific price.
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`68. For example, FIG. 3B of the ‘056 Patent, graphically shows bids and
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`offers. Each bid and offer is graphed as a polygon where the side closest to the
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`middle conveys the price as shown along the y axis, and the length of the polygon
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`conveys the size of the order. “In the priority view embodiment, orders 300, 304
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`are displayed at a location corresponding to their value with respect to the value
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`axis 332.” (‘056 6:7-10) “The quantity of each order is represented by a size of the
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`icon such as its length or height.” (‘056 6:20-22) The location on the x axis does
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`not convey any information such as time.
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`A.
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`Price Axis
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`69. Claim 1 recites plotting bids and offers along a “price axis.” The term
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`“prices axis” does not appear in the specification. “For example, in one
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`embodiment, a graph is formed with a value axis. Bid icons and offer icons for all
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`outstanding bids and offers are displayed on the graph at locations corresponding
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`to the values of the bids and offers.” (‘056 2:27-30). “Values may represent price,
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`interest rate, or any other metric by which an item may be valued.” (‘056 6:10-11)
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`70. The applicants did not clearly and intentionally disavow unlabeled
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`price axes even though the example embodiments show labels on the price axes. It
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`was well known in 1999 that graphs could be displayed with or without visible
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`axes lines and with or without labels on the axes. For example, Microsoft charting
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`software, such as those found in Microsoft Chart and Microsoft Excel, left the
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`display of axes as a user design choice. I have versions of Microsoft Chart, the first
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`of which I acquired in 1984. See also The Visual Display of Quantitative
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`Information by Edward Tufte at 122-137 (Exh. 1016). These concepts and design
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`choices were well known in 1999 to a person of ordinary skill in the art, as
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`corroborated by Tufte.
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`B. Offer and Bid Indicators Representing Quantity
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`71. Claim 1 recites “displaying a plurality of [bid/offer] indicators
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`representing quantity associated with the plurality of [bid/offer] orders.”
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`72. Claim 9 depends from claim 1, and recites that “each [bid/offer]
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`indicator . . . displays quantity associated with a price level.”
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`73.
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`In contrast, claim 8 recites “the method of claim 1, wherein a size of
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`each [bid/offer] indicator of the plurality of [bid/offer] indicators is determined
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`based on the quantity associated with that [bid/offer] indicator.”
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`74. Claim 1 does not have the same limitations as claim 8, thus claim 1
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`more broadly would read on