Case CBM2015-00181; CBM2015-00182
`
`Rho, David
`
`April 26, 2016
`
`1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` __________________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ___________________
`IBG LLC; INTERACTIVE BROKERS LLC; TRADESTATION
` TECHNOLOGIES, INC.; TRADESTATION GROUP, INC.;
` TRADESTATION SECURITIES, INC; and IBFX, INC.,
` Petitioner,
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` Patent Owner.
` __________________
` Case CBM2015-00181
` U.S. Patent 7,676,411
` __________________
`
` - and -
`
` Case CBM2015-00182
` U.S. Patent 6,772,132
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`TRADING TECH EXHIBIT 2164
`TRADESTATION, IBG, ET AL. v. TRADING TECH
`CBM2015-00161, CBM2015-00181, CBM2015-00182
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`PAGE 1 OF 337
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`Rho, David
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`April 26, 2016
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`1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` __________________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ___________________
`IBG LLC; INTERACTIVE BROKERS LLC; TRADESTATION
` TECHNOLOGIES, INC.; TRADESTATION GROUP, INC.;
` TRADESTATION SECURITIES, INC; and IBFX, INC.,
` Petitioner,
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` Patent Owner.
` __________________
` Case CBM2015-00181
` U.S. Patent 7,676,411
` __________________
`
` - and -
`
` Case CBM2015-00182
` U.S. Patent 6,772,132
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`TRADING TECH EXHIBIT 2164
`TRADESTATION, IBG, ET AL. v. TRADING TECH
`CBM2015-00161, CBM2015-00181, CBM2015-00182
`
`PAGE 1 OF 337
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`Case CBM2015-00181; CBM2015-00182
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`Rho, David
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`April 26, 2016
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`2
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` DAVID RHO,
`the witness, was called for examination by counsel
`for the Patent Owner, pursuant to notice,
`commencing at 9:05 a.m., at the law offices of
`Sterne, Kessler, Goldstein & Fox, P.L.L.C.,
`1100 New York Avenue, Northwest, Suite 600 East,
`Washington, D.C., before Dawn A. Jaques, CSR, CLR,
`and Notary Public in and for the District of
`Columbia.
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`www.hendersonlegalservices.com
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`Rho, David
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`April 26, 2016
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`APPEARANCES:
`On behalf of the Petitioner:
` ROBERT SOKOHL, ESQ.
` RICHARD M. BEMBEN, ESQ.
` Sterne, Kessler, Goldstein & Fox, P.L.L.C.
` 1100 New York Avenue, N.W.
` Suite 600
` Washington, D.C. 20005
` PHONE: (202) 772-8677 (Mr. Sokohl)
` (202) 371-8549 (Mr. Bemben)
` FAX: (202) 371-2540
` EMAIL: rsokohl@skgf.com
` rbemben@skgf.com
`
`On behalf of the Patent Owner:
` MICHAEL D. GANNON, ESQ.
` McDonnell Boehnen Hulbert & Berghoff LLP
` 300 South Wacker Drive
` Chicago, Illinois 60606-6709
` PHONE: (312) 913-2139
` FAX: (312) 913-0002
` EMAIL: gannon@mbhb.com
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`PAGE 3 OF 337
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`Rho, David
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`April 26, 2016
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`4
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` APPEARANCES (Continued):
`ALSO ON BEHALF OF THE PATENT OWNER:
` KEVIN D. RODKEY, ESQ.
` JOSHUA L. GOLDBERG, ESQ. (DC office)
` Finnegan, Henderson, Farabow,
` Garrett & Dunner, LLP
` 3500 Suntrust Plaza
` 303 Peachtree Street, NE
` Atlanta, Georgia 30308-3263
` PHONE: (404) 653-6484 (Mr. Rodkey)
` (202) 408-6092 (Mr. Goldberg)
` FAX: (404) 653-6444
` EMAIL: kevin.rodkey@finnegan.com
` joshua.goldberg@finnegan.com
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`Rho, David
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`April 26, 2016
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`5
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` I-N-D-E-X
`WITNESS: PAGE:
`DAVID RHO
` Examination by Mr. Gannon ........ 7
`
` *** NO NEW EXHIBITS MARKED ***
`
` PREVIOUSLY MARKED EXHIBITS REFERRED TO
`EXHIBIT NUMBER PAGE:
`IBG 1001 U.S. Patent 6,772,132 ....... 193
`IBG 1001 U.S. Patent 7,676,411 ....... 216
`IBG 1006 Declaration of David Rho in
` Support of Petition for Covered
` Business Method Review of
` U.S. Patent 6,772,132 ....... 57
`IBG 1009 International Publication
` No. WO 90/11571 ............. 124
`IBG 1017 Futures/Option Purchasing System
` Trading Terminal Operation Guide
` Reference_065 ................ 146
`IBG 1023 Declaration of David Rho in
` Support of Petition for Covered
` Business Method Review of
` U.S. Patent 7,676,411 ....... 59
`TDA 1023 Declaration of David Rho in
` Support of Petition for Covered
` Business Method Review of
` U.S. Patent 7,676,411 ....... 59
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`April 26, 2016
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`6
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` INDEX (Continued)
` PREVIOUSLY MARKED EXHIBITS REFERRED TO
`EXHIBIT NUMBER PAGE:
`1024 Curriculum vitae of David Rho
`IBG 1025 List of Materials Considered
` by David Rho for Declaration
` in Support of Petition for
` Covered Business Method Review
` of U.S. Patent 7,676,411 .... 93
`IBG 1027 Curriculum Vitae of David Rho 26
`IBG 1028 List of Materials Considered
` by David Rho for Declaration
` in Support of Petition for
` Covered Business Method Review
` of U.S. Patent 6,772,132 .... 91
`2102 Declaration of David Rho in
` the TD proceedings
` (not attached to this transcript) 119
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` P R O C E E D I N G S
`Whereupon,
` DAVID RHO,
` was called as a witness, after having been
` first duly sworn by the Notary Public, was
` examined and testified as follows:
` EXAMINATION BY COUNSEL FOR THE PATENT OWNER
` BY MR. GANNON:
` Q Good morning.
` A Good morning.
` Q Could you state your name for the
`record, please?
` A Yes. My name is David Rho.
` Q And do you understand you're under
`oath this morning?
` A Yes, I do.
` Q And that means you're sworn to tell
`the truth just as if you were in front of a judge
`or jury. Do you understand that?
` A I understand that.
` Q Okay. Is there anything that would
`prevent you from giving me full and accurate
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`answers today?
` A Nothing that I believe at this point,
`no.
` Q Okay. You're not taking any type of
`medication or anything that would prevent you from
`testifying truthfully or accurately today?
` A No, I'm not.
` Q I know you've been deposed once before
`in the prior TD proceedings; is that correct?
` A That is correct.
` Q So is this your second deposition?
` A Yes, it is.
` Q Okay. So I know you're familiar with
`the proceedings then since you've been deposed
`once. I'm going to be asking you questions,
`you'll be providing answers. Your counsel may
`object at times.
` If you don't understand any of my
`questions, please ask me to clarify and I'll try
`to do that. Is that fair?
` A That's fair.
` Q Okay. I plan on going for maybe
`
`202-220-4158
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`www.hendersonlegalservices.com
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`45 minutes to 60 minutes between breaks, but if
`you'd like to take a break at other times, that's
`fine. I just ask that, if there's a question
`pending, that you provide an answer to the
`question before we break. Is that okay?
` A Yes, that's fair.
` Q And is it fair for me to assume that
`if I ask you a question and you answer it, that
`you've understood my question?
` A I would still reserve the right, if I
`get to a point where I realize I made a mistake,
`that I could correct what I've stated, but for the
`most part, if I've answered your question, I will
`have thought about the question and will have
`understood the question.
` Q Okay, fair enough.
` And you understand that you are not
`supposed to talk about your testimony during
`breaks today, correct?
` A Yes, I understand.
` Q And, again, if you want to take a
`break at any time, just let me know, I'll be happy
`
`202-220-4158
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`www.hendersonlegalservices.com
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`to do that.
` A Okay.
` Q Did you prepare for your deposition
`today?
` A Yes, I did.
` Q What did you do, just generally? I'm
`not looking for conversations with lawyers, just
`in general.
` MR. SOKOHL: Objection.
` THE WITNESS: Reviewed documents, and
`discussed the documents that I had either written,
`such as my declaration, or the supporting
`documents for the declaration.
` BY MR. GANNON:
` Q How long did you spend preparing for
`your deposition, just approximately?
` A Approximately one day.
` Q One day, okay.
` Did you review your prior deposition
`transcript?
` A Yes, I did.
` Q Did you see anything in that
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`transcript that you thought was an error that you
`would like to correct?
` MR. SOKOHL: Objection.
` THE WITNESS: No.
` BY MR. GANNON:
` Q So you looked at your declarations in
`these proceedings, correct?
` A Yes.
` Q And that's on the '411 patent and the
`'132 patent?
` A That's correct.
` Q What other documents did you review?
` MR. SOKOHL: Objection. That's work
`product. You don't need to answer that question.
` MR. GANNON: Well, he's already
`answered he's reviewed his declarations.
` MR. SOKOHL: Correct.
` MR. GANNON: And I believe he
`testified he reviewed supporting documentation.
` MR. SOKOHL: Understood. You asked a
`general question, he answered it. He's not going
`to talk about which documents he reviewed during
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`202-220-4158
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`www.hendersonlegalservices.com
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`preparation. That's work product.
` BY MR. GANNON:
` Q Could you tell me what supporting
`documents you looked at in preparation for your
`deposition today beyond the declarations, the '132
`and --
` MR. SOKOHL: Again, it's work product,
`Counsel. Ask him about specific documents, and we
`can go from there.
` BY MR. GANNON:
` Q Are you going to follow your counsel's
`instruction?
` A I think that's wise, yes.
` Q Who is representing you today, by the
`way?
` A It's Mr. Sokohl and Mr. Bemben.
` Q By whom are you employed currently?
` A I'm employed by MMG Partners.
` Q And what's your responsibilities at
`MMG Partners? Just today I'm asking about for
`now.
` A Just today?
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`www.hendersonlegalservices.com
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` Q Well, currently, what are you doing
`for them?
` A I'm a partner with the firm, and that
`involves me acting as a relationship manager for
`various clients, as well as providing sales
`support, trying to garner new business, managing
`projects.
` Q Okay, you said a relationship manager.
`What does that mean, relationship manager for
`various clients?
` A So for, say, one specific client, I
`won't name the client, but if we sell them a
`product or we sell them consulting services, I'm
`involved in dealing with the management within
`that firm to make sure that the product or service
`that we're providing them meets their needs.
` Q What type of client are you talking
`about? What type of industry?
` A All of our clients are within the
`financial services industry, so investment banks,
`insurance companies, exchanges. Sometimes we're
`involved with private equity firms that are
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`202-220-4158
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`www.hendersonlegalservices.com
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`looking to invest in the financial services area.
` Q Okay. Do you do any work currently in
`the area of trading or electronic trading or GUIs
`for electronic trading?
` MR. SOKOHL: Objection, form.
` THE WITNESS: Could you clarify?
` BY MR. GANNON:
` Q Yes. Do you do any work now currently
`in the area of electronic trading?
` MR. SOKOHL: Objection, form.
` MR. GANNON: You can answer. The
`objection --
` MR. SOKOHL: You can answer.
` THE WITNESS: Not directly, but a lot
`of the products that we examine have trading
`components to them.
` BY MR. GANNON:
` Q And what type of products do you
`examine?
` A So it's a lot of market data terminal
`products, so things such as Bloomberg terminals,
`Eikon terminals, FactSet terminals.
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` Q What's a Bloomberg terminal?
` A A Bloomberg terminal is a -- it's a
`market data product. It provides to the end user
`quotes, market information, company information,
`research. It also has trading components to it as
`well.
` Q You mentioned Eikon terminals. What's
`that?
` A That's a product from Thomson Reuters.
`It is similar to a Bloomberg terminal in that it
`provides market data, quotes, company information.
`It has some trading components to it.
` More often than not, people are using
`the Eikon terminal along with the Thomson Reuters
`infrastructure to feed into their proprietary
`applications for trading.
` Q And when you say Eikon -- I think you
`said Eikon terminal?
` A E-I-K-O-N is I believe the way it's
`spelled. It's not I-K-O-N.
` Q It's icon, I-C-O-N?
` A No. E-I-K-O-N I believe is how it's
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`spelled. Yeah, not I-C-O-N, that's correct.
` Q Okay. And when you say trading
`components when you talk about the Bloomberg
`terminals and the FactSet terminals, what do you
`mean by "trading components"?
` A Well, Bloomberg has a number of
`trading front ends contained within the Bloomberg
`terminal itself. So it could be things such as
`Bloomberg Tradebook; it could be pieces that
`support trading, such as their POMS systems, the
`portfolio order management system; TOMS, which is
`the trade order management system.
` They have a number of other order
`management systems in there as well.
` Q You mentioned a front end in your
`answer. What's a front end?
` A So it would be something that is on
`the terminal which can present information to the
`trader to allow them to make their trading
`decisions.
` Q And what type of trader are you
`talking about?
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` A It would depend on the trading
`front end. It would also depend on what asset
`class that that particular trader was in, but it
`would be -- could be an equity trader, so somebody
`who is trading stocks; it could be a fixed income
`trader; it could be a commodities trader.
` Q And are these front ends connected to
`an exchange, an electronic exchange?
` A Eventually, yes.
` Q And what is an electronic exchange?
` MR. SOKOHL: Objection.
` BY MR. GANNON:
` Q Again, you can answer. Unless your
`counsel instructs you not to answer --
` A Understood.
` Q -- you can answer, unless there's
`something you don't understand, then I'll try to
`clarify that of course.
` A It is a venue which has electronic
`connections, usually in some type of a network,
`that allows their members and brokers to connect
`via that network, and to execute trades without
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`Rho, David
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`April 26, 2016
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`direct human intervention. So a computer is
`essentially doing the matching for those trades.
` Q I want to ask you some questions about
`your CV, but before I do that, how much time
`currently do you devote to doing projects like
`this where you're an expert consultant or an
`expert witness, whatever you want to call it, but
`doing this type of work that you're doing today?
` MR. SOKOHL: Objection.
` THE WITNESS: This is not my full-time
`job, so I don't dedicate that much time to it.
`Most of my time is dedicated to the other things
`that I mentioned acting as a partner in the firm.
` BY MR. GANNON:
` Q Right, and that's what I was kind of
`getting at. I understand MMG Partners is kind of
`your full-time job, right?
` A Yes, it is.
` Q So how much of your time do you spend
`doing this type of work, if could you put a number
`on it? Number of days? Number of hours? I'm
`just trying to get a feel for how much you do this
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`type of work.
` MR. SOKOHL: Objection, form,
`relevance.
` THE WITNESS: I don't -- I don't know.
`I wouldn't be able to quantify.
` BY MR. GANNON:
` Q Other than this project, are you
`working as a consultant on any other project in
`terms of being an expert witness?
` A Currently? No.
` Q And you have in the past, obviously,
`in the TD proceedings, correct?
` A That's correct.
` Q Any other time?
` A I was not the expert in the case, but
`I was supporting an expert in a case. I believe I
`have it in my CV, or it's in my declaration.
` Q Any other time you've been an expert
`consultant other than in these proceedings, in the
`TD proceedings?
` A A legal expert? No.
` Q Okay. So the case that you referred
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`to, that was your first time? That wasn't very
`clear, but the case that you mentioned where you
`were supporting an expert.
` A I don't recall the details that I
`listed in the declaration. So I think I listed
`the name of the -- if I could review my
`declaration, I could read that for you.
` Q Okay. Was it Mr. Ma?
` A Yes, Dr. Ma.
` Q Dr. Ma. So that work with Dr. Ma,
`that was your first time serving as an expert
`witness?
` MR. SOKOHL: Objection,
`mischaracterizes.
` BY MR. GANNON:
` Q That's a point well taken.
` Your work with Dr. Ma, was that the
`first time you worked on a case where you were
`either an expert or working with an expert?
` A Yes, I would say so, yes.
` Q And what types of things did you do
`with Dr. Ma in that case?
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` MR. SOKOHL: Objection, form.
` BY MR. GANNON:
` Q I think your CV mentions some of this
`stuff, and I can show it to you if you'd like, but
`I'm just asking generally.
` A I reviewed all of the documents that
`Dr. Ma reviewed. We discussed the merits of his
`declaration, we actually authored a lot of it, and
`we worked closely with the attorneys to finalize
`the declaration -- his set of declarations.
` Q And who did you represent? What side
`were you on?
` A They were trying to get a patent
`overturned, our client was.
` Q Was that a case involving the CBOE?
` A Yes, it was.
` Q And you were kind of on the other
`side?
` A Yes.
` Q The party for the other side?
` A Yes.
` Q And that was the Patent Owner?
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` A That was the Patent Owner. I
`apologize, yes, we were in support of the -- I
`apologize. We were in support of the patent.
` Q Was that company called ISE, I-S-E?
` A ISE, International Securities
`Exchange.
` Q So they were the Patent Owner?
` A They were the Patent Owner.
` Q And you put forward a -- or Dr. Ma put
`forward an infringement position; is that right?
` MR. SOKOHL: Objection, form and
`foundation, and I would ask the witness not to
`disclose anything that's confidential and
`privileged to that company.
` THE WITNESS: It should be in the
`public record, so whatever is in the public
`record. I'm not fully aware of what's actually in
`the public records.
` BY MR. GANNON:
` Q Okay. ISE was asserting its patent
`against the CBOE, right?
` A That's correct.
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` Q So ISE was asserting patent
`infringement against the CBOE, correct?
` MR. SOKOHL: Objection, foundation.
` THE WITNESS: Yes.
` BY MR. GANNON:
` Q Okay. Did you work on that part of
`the case, the infringement part?
` MR. SOKOHL: Again, I would instruct
`the witness not to answer if it reveals
`confidential or privileged information of that
`company.
` MR. GANNON: Yeah, that's fair enough,
`Mr. Sokohl. I'm not asking for your
`communications with the lawyers.
` THE WITNESS: This was before the
`courts, the federal courts, so this was not with
`the patent office.
` BY MR. GANNON:
` Q Okay. So in the federal courts, ISE
`was asserting patent infringement, right?
` A Correct.
` Q Did you work on the infringement
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`issues in that case with Dr. Ma?
` MR. SOKOHL: Same objection.
` THE WITNESS: I worked with him on his
`declaration.
` BY MR. GANNON:
` Q And that declaration related to what?
`Just generally.
` MR. SOKOHL: Objection, relevance.
` THE WITNESS: It was towards
`supporting ISE's assertions.
` BY MR. GANNON:
` Q Okay. And one of the assertions was
`patent infringement, right?
` A Yes.
` Q Did you also help Dr. Ma in fending
`off any invalidity challenges of the
`patent-in-suit?
` A I believe so, yes.
` Q I think your CV mentions that you may
`have been successful in fending off an invalidity
`challenge with respect to that patent, is that
`accurate?
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` A I don't recall. I don't recall the
`absolute details.
` Q Okay. Do you recall the outcome of
`the invalidity challenge, if there was one, if
`there was an outcome?
` A I'm not sure that there was an
`outcome.
` Q Okay. Do you know if there was an
`outcome on the infringement side, ISE's
`infringement claim against the CBOE?
` A That should be in the public record.
` Q I understand that it may or may not be
`in the public record, but I'm asking whether you
`know the outcome of the infringement case that ISE
`had against the CBOE.
` A Well, I believe the public record
`states that the judge ruled against infringement,
`it was overturned on appeal, it was thrown back,
`and it was then -- the judge again ruled against
`infringement, and it's currently in appeal again.
` Q Okay. So the court ruled there was no
`infringement?
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` MR. SOKOHL: Objection, asked and
`answered.
` THE WITNESS: It should be in the
`public record, so I don't -- I'm not an attorney.
`You have to understand that I'm looking at it more
`from a layman's perspective as to what the outcome
`was.
` BY MR. GANNON:
` Q Right.
` A So I don't know the details as to why
`or how the judge ruled that it -- either she
`kicked the case. I don't know what happened, the
`legal terms, but that should be in the public
`record, and you can review the public record.
` Q Okay, let's take a look at your CV.
`That's Exhibit 1024 in the '181 CBM proceeding.
` Mr. Rho, I'll give you a chance to
`take a look at it, and when you're done reviewing
`it, let me know.
` And I guess while I'm at it, I'm going
`to also show you Exhibit 1027, another CV in the
`'181 CBM proceeding.
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` So, Mr. Rho, now you have
`Exhibits 1024 and 1027. Let me know when you've
`had a chance to look at them.
` A Okay, I've reviewed the documents.
` Q Okay. Do you recognize these
`exhibits?
` A Yes.
` Q And what are they?
` A They're my CV.
` Q Okay. Are they the same? They appear
`to be the same to me, but I thought I would ask
`you.
` A I didn't do an extensive check, but
`they should be the same.
` Q Okay. So looking at Exhibit 1024, and
`I guess starting on page 3, I just wanted to ask
`you a quick questions about your education.
` You went to MIT, is that right?
` A That's correct.
` Q Did you have any particular emphasis
`in the degree you obtained?
` A Yes, it was a degree in computer
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`science, with electrical engineering was an
`artifact of their accreditation, so ...
` Q Had to slip in the electrical
`engineering with that, right?
` A It had to do with some of the core
`courses that at the time I was required to take.
`So some of the courses could swing both ways, so
`that's why they said with electrical engineering.
` Q Did you have any particular emphasis
`in your degree in computer science? Did you
`emphasize particular classes or take particular
`classes in getting part of your degree?
` MR. SOKOHL: Objection, form.
` THE WITNESS: At the time, MIT didn't
`have different programs, different specializations
`within computer science. It was more of a general
`degree. You could take some additional -- some
`optional courses, or you had to take two of three
`or two of five type of courses, but there was no
`institutional direction towards any concentration.
` BY MR. GANNON:
` Q And you said it better in your answer
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`than I tried to ask it in my question, and that
`was whether you took any specific classes or
`specialized in anything within the area of
`computer science?
` A No, it was more of a general computer
`science degree.
` Q Then after that, I guess you stayed at
`MIT; is that right?
` A Yes. I ended up working for the
`institute for a number of years.
` Q Okay. And that was from '92 to '99,
`correct?
` A That's correct.
` Q And what did you do there as the
`Manager of Educational Computing Facility?
` A So a lot of that work was to
`support -- it was actually academic and
`administrative computing.
` So academic, meaning I would support
`professors with their use of computing within
`their research, but more typically within their
`teaching, so there were a number of computer labs
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`that we were required to configure and set up and
`support; and the administrative computing was more
`supporting the staff members and the department
`heads.
` Q At the computing facility, did you do
`any work in trading or electronic trading or GUIs
`for electronic trading?
` A No, not directly, no.
` Q So when was your first experience with
`those topics, broad topics, if you will: trading,
`electronic trading, GUIs for electronic trading?
` A So, trading, I actually started
`gaining some experience -- it's not listed on my
`CV, but I did some side consulting work for -- it
`was another consulting firm, actually. It was
`Mitchell Madison Group.
` I was doing some consulting with them
`on -- it was supporting various projects, mostly
`in the financial services area, and I also learned
`a great deal at that time about trading and
`trading mechanisms.
` Q And when was that, your work with
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`this -- is it Mitchell Madison Group?
` A That's correct.
` Q When was that?
` A That was in the mid '90s.
` Q Can you be any more specific in terms
`of the time frame?
` A Maybe '94 to '96, '94 to '98. I don't
`recall exactly, so ...
` Q Is there a reason why that is not
`included on your CV?
` A It was just something that I was doing
`as side work to work at MIT. I was actually
`taking -- I went from 100 percent at M
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