`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`TRADING TECHNOLOGIES INTERNATIONAL,)
`INC.,
`
`))
`
`))
`
`Plaintiff,
`
`)
`v.
`)
`eSPEED, INC., eSPEED INTERNATIONAL,)
`LTD., ECCO LLC, and ECCOWARE, LTD.,)
`)
`Defendants.
`)
`
`No. 04 C 5312
`
`Chicago, Illinois
`September 26, 2007
`10:00 o'clock a.m.
`
`VOLUME 11-A
`TRIAL TRANSCRIPT OF PROCEEDINGS
`BEFORE THE HONORABLE JAMES B. MORAN, and a JURY
`
`APPEARANCES:
`Trading Technologies
`International, Inc., by:
`
`and
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.,
`MR. STEVEN F. BORSAND
`222 South Riverside Drive
`Chicago, Illinois 60606
`312-476-1000
`steve.borsand@
`tradingtechnologies.com
`McDONNELL, BOEHNEN, HULBERT &
`BERGHOFF, LTD.
`MR. PAUL H. BERGHOFF
`MR. S. RICHARD CARDEN
`MR. CHRISTOPHER M. CAVAN
`MR. MICHAEL D. GANNON
`MS. JENNIFER M. KURCZ
`MR. MATTHEW J. SAMPSON
`MR. LEIF R. SIGMOND
`300 South Wacker Drive
`Chicago, Illinois 60606
`312-913-0001
`berghoff@mbhb.com
`kurcz@mbhb.com
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Page 1 of 259
`
`TRADING TECH EXHIBIT 2029
`IBG ET AL. v. TRADING TECH
`CBM2015-00182
`
`
`
`eSpeed, Inc., eSpeed
`International, Inc.,
`Ecco LLC, Eccoware,
`LTD., by:
`
`Rosenthal Collins Group,
`LLC, by:
`
`2184
`
`WINSTON & STRAWN
`MR. GEORGE C. LOMBARDI
`MR. RAYMOND C. PERKINS
`MR. IMRON T. ALY
`MR. KEVIN BANASIK
`MS. ELIZABETH HARTFORD ERICKSON
`MR. ANDREW M. JOHNSTONE
`MS. TRACEY J. ALLEN
`MR. JAMES M. HILMERT
`35 West Wacker Drive
`Chicago, Illinois 60601
`312-558-5600
`glombardi@winston.com
`rperkins@winston.com
`LAW OFFICES OF
`GARY A. ROSEN, P.C.
`MR. GARY A. ROSEN
`1831 Chestnut Street, Suite 802
`Philadelphia, Pennsylvania
`19103
`215-972-0600
`
`DOWELL BAKER
`MR. GEOFFREY A. BAKER
`201 Main Street
`Lafayette, IN 47901
`765-429-4004
`gabaker@dowellbaker.com
`
`Court Reporter:
`
`MS. CAROLYN COX, CSR, RPR, CRR
`Official Court Reporter
`219 S. Dearborn Street, Suite 1854-B
`Chicago, Illinois
`60604
`(312) 435-5639
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Page 2 of 259
`
`
`
`JOSEPH NOVIELLO, DIRECT EXAMINATION
`BY MR. LOMBARDI:
`JOSEPH NOVIELLO, CROSS-EXAMINATION
`BY MR. BERGHOFF:
`JOSEPH NOVIELLO, REDIRECT EXAMINATION
`BY MR. LOMBARDI:
`ATSUSHI KAWASHIMA, DIRECT EXAMINATION BY
`DEPOSITION
`BY MR. HILMERT:
`DAVID SILVERMAN, DIRECT EXAMINATION
`BY MR. PERKINS:
`
`2185
`
`2193
`
`2218
`
`2250
`
`2254
`
`2295
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Page 3 of 259
`
`
`
`2186
`
`(The following proceedings were had in open court,
`outside the presence and hearing of the jury:)
`THE COURT:
`Good morning.
`The one motion
`that -- I think I only got one motion pending, don't I?
`MR. CARDEN:
`It's the one on the
`non-infringement --
`Yes.
`THE COURT:
`As I understand eSpeed's
`position, it is that with a centering mechanism in the
`software that -- an automatic centering, that eSpeed
`doesn't -- couldn't directly infringe because it would
`have to be used without the centering to be infringement
`so that it is a contributory infringement claim, and
`eSpeed says unless we induce people to not use the
`centering mechanism, then -- well, plaintiff has to show
`inducement.
`
`And as I understand the previous evidence, I
`think only one witness touched on this and that was
`basically that traders who are using multiple screens,
`most of which are inactive at any given time so they are
`concentrating on one screen, are going to use the
`centering, automatic centering, because they are really
`not paying any attention to it, and if they turn to
`them, they want to have it centered, but the screen
`they're using that's active that in those circumstances
`traders by and large don't want a centering device
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:10:14
`
`10:10:14
`
`10:10:15
`
`10:10:22
`
`10:10:24
`
`10:10:26
`
`10:10:38
`
`10:10:44
`
`10:10:57
`
`10:11:00
`
`10:11:06
`
`10:11:14
`
`10:11:21
`
`10:11:27
`
`10:11:30
`
`10:11:35
`
`10:11:38
`
`10:11:45
`
`10:11:48
`
`10:11:51
`
`10:11:55
`
`10:11:58
`
`10:12:02
`
`10:12:07
`
`Page 4 of 259
`
`
`
`2187
`
`I believe that's essentially
`
`automatic because they want to have control over what's
`happening.
`And am I correct in understanding what
`eSpeed's position is?
`MR. PERKINS:
`correct, yes, your Honor.
`THE COURT:
`Okay.
`MR. SAMPSON:
`Your Honor, there's one
`addition to that from TT's position and that is that,
`you know, the demonstration and training is also use of
`the method by eSpeed and the witness addressed that as
`well.
`
`Yes, they show them both ways.
`Right.
`So that would actually be a
`
`THE COURT:
`MR. SAMPSON:
`MR. CARDEN:
`direct infringement.
`That is a direct infringement.
`MR. SAMPSON:
`So given that circumstance, do
`THE COURT:
`people want to rely on what they've given me already, or
`anybody want to file anything more?
`MR. PERKINS:
`Just one further point on the
`inducement, your Honor.
`There's also an intent element
`to it that eSpeed --
`THE COURT:
`MR. PERKINS:
`the inducement.
`
`I'm sorry?
`There is an intent element to
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:12:11
`
`10:12:15
`
`10:12:20
`
`10:12:22
`
`10:12:24
`
`10:12:25
`
`10:12:26
`
`10:12:28
`
`10:12:33
`
`10:12:38
`
`10:12:42
`
`10:12:42
`
`10:12:44
`
`10:12:46
`
`10:12:47
`
`10:12:48
`
`10:12:50
`
`10:12:52
`
`10:12:56
`
`10:12:59
`
`10:13:01
`
`10:13:04
`
`10:13:06
`
`10:13:07
`
`10:13:08
`
`Page 5 of 259
`
`
`
`2188
`
`Right.
`THE COURT:
`So they have to show that
`MR. PERKINS:
`eSpeed intended to encourage and instruct others to use
`the product in an infringing manner.
`So I just wanted
`to mention that as well.
`That can also just be shown by
`MR. CARDEN:
`evidence of things such as manuals.
`THE COURT:
`Does anybody want to file
`anything further?
`I don't believe we do.
`MR. CARDEN:
`No.
`MR. PERKINS:
`But, your Honor, one of the
`MR. SIGMOND:
`things that I think our motion was meant to address is
`that, you know, the inducement thing on that recentering
`command is one thing, but all these other defenses about
`we have to show use of all the other products, that's
`something they never pled or put in their interrogatory
`answers, so that's part of our motion also.
`MR. BORSAND:
`And actually they never in
`their interrogatories even raised the lack of inducement
`as a defense in their --
`THE COURT:
`time I heard it.
`So we think we have the proof
`MR. BORSAND:
`anyway clearly, but our motion was based on they never
`
`I will say this is the first
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:13:09
`
`10:13:09
`
`10:13:11
`
`10:13:15
`
`10:13:18
`
`10:13:20
`
`10:13:22
`
`10:13:24
`
`10:13:26
`
`10:13:27
`
`10:13:28
`
`10:13:30
`
`10:13:32
`
`10:13:34
`
`10:13:40
`
`10:13:43
`
`10:13:46
`
`10:13:49
`
`10:13:52
`
`10:13:54
`
`10:13:57
`
`10:13:59
`
`10:14:00
`
`10:14:02
`
`10:14:04
`
`Page 6 of 259
`
`
`
`2189
`
`raised any of these, they were supposed to in their
`interrogatory responses, so that was one of the big
`parts of the motion.
`Okay.
`THE COURT:
`Your Honor, I don't know if
`MR. PERKINS:
`you remember this, but when they filed their summary
`judgment motion, when they cross-filed on our summary
`judgment motion, they actually said that they should get
`infringement and an infringement on our accused
`products, and we responded back and said, no, you have
`to prove inducement, you have to prove that people are
`actually using this in an infringing manner and TT
`replied and said, okay, we will do that at trial.
`did raise it before and it's part of the briefing.
`MR. BORSAND:
`I think that's apples and
`All it had to do with was the subsequent
`oranges.
`products that are not at issue in this case because you
`found those -- there was never a fight over these
`original products.
`THE COURT:
`original product.
`But there was in the briefing,
`MR. PERKINS:
`your Honor, because they cross moved on it.
`We actually
`put in our papers, if they are going to do that, then we
`should actually get summary judgment on those original
`
`There was never a fight over the
`
`We
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:14:07
`
`10:14:10
`
`10:14:12
`
`10:14:12
`
`10:14:13
`
`10:14:14
`
`10:14:16
`
`10:14:19
`
`10:14:22
`
`10:14:27
`
`10:14:29
`
`10:14:32
`
`10:14:36
`
`10:14:39
`
`10:14:42
`
`10:14:45
`
`10:14:48
`
`10:14:50
`
`10:14:54
`
`10:14:54
`
`10:14:57
`
`10:14:57
`
`10:14:59
`
`10:15:01
`
`10:15:05
`
`Page 7 of 259
`
`
`
`2190
`
`products.
`
`it at trial.
`
`MR. SIGMOND:
`MR. PERKINS:
`
`No.
`They said no, no, no, we'll do
`
`Those original products
`MR. SIGMOND:
`weren't part of the summary judgment briefing.
`It's
`clear.
`I invite you to look at those briefs.
`THE COURT:
`They were not part of the
`original summary judgment.
`Anything else?
`MR. CARDEN:
`We do have one additional
`As
`matter just to bring to your attention, your Honor.
`you may recall, we filed a motion in limine on Examiner
`Weisberger and his proposed testimony and you had ruled
`that eSpeed could offer a select portion of his
`We got their designations
`transcript but not a lot.
`last night and, frankly, having gone through them, they
`really seem to be pointless.
`They're just establishing
`that communications occurred.
`That's in the record,
`whether through the e-mails or the prosecution history,
`so we are probably just going to put together a very
`brief description of why we believe that these shouldn't
`be played when we submit our objections.
`MR. ALY:
`Your Honor, there was a limited
`number of substantive evaluations or comments that the
`As you recall, the examiner said I don't
`examiner made.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:15:06
`
`10:15:07
`
`10:15:08
`
`10:15:10
`
`10:15:11
`
`10:15:12
`
`10:15:14
`
`10:15:16
`
`10:15:17
`
`10:15:19
`
`10:15:21
`
`10:15:23
`
`10:15:27
`
`10:15:30
`
`10:15:34
`
`10:15:37
`
`10:15:41
`
`10:15:44
`
`10:15:47
`
`10:15:50
`
`10:15:52
`
`10:15:56
`
`10:16:00
`
`10:16:02
`
`10:16:05
`
`Page 8 of 259
`
`
`
`2191
`
`There's no real reason to
`know a whole bunch of times.
`There's only two sections
`play that or I don't recall.
`of his testimony that we are down to now out of the
`testimony and those two are not that kind of testimony
`upon which your Honor can rule.
`So if TT wants your
`Honor to look at it again, that's fine, but it is
`different and we have narrowed it substantially.
`MR. CARDEN:
`And that's just simply
`incorrect, your Honor.
`The types of designations in
`here, your Honor, are the patents which are the
`application that's at issue and that includes a
`designation where there is an instruction from the PTO
`examiner or the PTO attorney that she herself will
`answer the question on his behalf and the rest of these
`are just replete with I cannot recall.
`THE COURT:
`You are going to be dumping this
`
`on me again?
`
`Yes, we will.
`MR. CARDEN:
`Let's wait.
`THE COURT:
`Speaking of dumping, they look
`MR. ALY:
`like ominous binders but they are the Kemp and -- we
`submitted the whole transcript, but there aren't very
`many designations and not very many objections.
`THE COURT:
`I also have the other inventor.
`MR. ALY:
`Schluette.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:16:07
`
`10:16:10
`
`10:16:13
`
`10:16:15
`
`10:16:18
`
`10:16:21
`
`10:16:23
`
`10:16:25
`
`10:16:29
`
`10:16:32
`
`10:16:34
`
`10:16:37
`
`10:16:40
`
`10:16:43
`
`10:16:45
`
`10:16:48
`
`10:16:51
`
`10:16:52
`
`10:16:53
`
`10:16:54
`
`10:16:57
`
`10:17:01
`
`10:17:04
`
`10:17:07
`
`10:17:10
`
`Page 9 of 259
`
`
`
`2192
`
`Schluette.
`THE COURT:
`For Brumfield in particular, I
`MR. ALY:
`tabbed a few places and TT as --
`THE COURT:
`That helps.
`MR. ALY:
`But for Kemp, I didn't get to do
`
`that.
`
`THE COURT:
`We are ready to proceed, right?
`MR. LOMBARDI:
`Just so your Honor knows,
`this morning we are likely to have to read a deposition
`because there is no video on it.
`You may need to
`explain to the jury at that time.
`I believe that this
`deposition, it was done in Japanese and I think that
`there are actually two translators, so it's not just
`going to be -- as I understand it, there will be some
`times where you hear from translator one and translator
`two in the transcript, so it's a little different even
`than the standard reading of a deposition.
`THE COURT:
`Okay.
`MR. CARDEN:
`And I just wanted to know -- I
`didn't know if you guys wanted to clear some of this.
`THE COURT:
`Yes, if we can.
`MR. PERKINS:
`Your Honor, this raises a
`At the end of the day, the jury is going to
`question.
`have so many binders from so many witnesses, I don't
`know if they are making notes in these binders or not.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:17:11
`
`10:17:16
`
`10:17:19
`
`10:17:22
`
`10:17:23
`
`10:17:25
`
`10:18:01
`
`10:18:04
`
`10:18:05
`
`10:18:09
`
`10:18:11
`
`10:18:14
`
`10:18:17
`
`10:18:21
`
`10:18:24
`
`10:18:27
`
`10:18:30
`
`10:18:32
`
`10:18:34
`
`10:18:36
`
`10:18:38
`
`10:18:48
`
`10:18:49
`
`10:18:52
`
`10:18:55
`
`Page 10 of 259
`
`
`
`2193
`
`No.
`THE COURT:
`I don't want to look through any
`MR. ALY:
`I don't want to check unless you want me to.
`THE COURT:
`You can check to see if there
`
`of them.
`
`are notes.
`
`Assuming that the juror opts
`MR. LOMBARDI:
`off the panel, the one that you gave the choice, I
`assume that the instruction will be that nobody should
`be contacting her during the pendency of the case.
`THE COURT:
`Exactly.
`(The jury enters the courtroom.)
`We are ready to proceed.
`THE COURT:
`MR. LOMBARDI:
`Good morning, your Honor.
`ESpeed calls Joe Noviello.
`(Witness sworn.)
`
`- - -
`JOSEPH NOVIELLO, DIRECT EXAMINATION
`BY MR. LOMBARDI:
`Would you state your name for the record, please?
`Q.
`Joseph Noviello.
`A.
`And just so the jury knows where you are and who
`Q.
`you are before we get started, who are you and what's
`your position?
`I am currently the chief product engineer for
`A.
`eSpeed, and the reason I'm here is in my capacity at
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:18:58
`
`10:18:59
`
`10:19:01
`
`10:19:05
`
`10:19:07
`
`10:19:07
`
`10:19:11
`
`10:19:15
`
`10:19:17
`
`10:19:21
`
`10:20:50
`
`10:20:55
`
`10:21:10
`
`10:21:11
`
`10:21:25
`
`10:21:25
`
`10:21:25
`
`10:21:25
`
`10:21:51
`
`10:21:53
`
`10:21:57
`
`10:22:01
`
`10:22:05
`
`10:22:06
`
`10:22:08
`
`Page 11 of 259
`
`
`
`2194
`
`Okay.
`
`Mr. Noviello, how long have you worked for
`
`eSpeed over the years I managed the development and
`implementation of the products that are in question here
`today.
`Q.
`eSpeed?
`I've worked for eSpeed for 12 years.
`A.
`So going back to '95 or so?
`Q.
`Correct, September of 1995.
`A.
`And how did you get started with eSpeed?
`Q.
`When I first started at -- actually, at Cantor
`A.
`Fitzgerald, which was the predecessor to eSpeed, in
`September of 1995, I came in as a development manager
`for a small group that was responsible for the
`implementation of the market data system.
`What system?
`Could you tell the jury what a
`Q.
`market data system is?
`Sure.
`This group was responsible for developing
`A.
`software and supporting software that distributed the
`prices that were produced by the brokerage area to its
`customers reliably for their viewing.
`Now, since the time you came to eSpeed, you've
`Q.
`had several different positions; is that right?
`That's correct.
`A.
`Why don't you just run the jury through the
`Q.
`positions and we'll talk about them briefly.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:22:11
`
`10:22:14
`
`10:22:16
`
`10:22:16
`
`10:22:19
`
`10:22:19
`
`10:22:23
`
`10:22:25
`
`10:22:26
`
`10:22:29
`
`10:22:34
`
`10:22:36
`
`10:22:40
`
`10:22:44
`
`10:22:49
`
`10:22:52
`
`10:22:53
`
`10:22:56
`
`10:23:00
`
`10:23:04
`
`10:23:06
`
`10:23:08
`
`10:23:10
`
`10:23:11
`
`10:23:13
`
`Page 12 of 259
`
`
`
`2195
`
`So over the years, my responsibility has
`Sure.
`A.
`kind of increased at Cantor and then later at eSpeed.
`At the time eSpeed went public in 1999, I was the chief
`technology officer of eSpeed.
`Later in September of
`2001, I became the chief information officer at eSpeed,
`and then in June of 2004, I became the chief product
`architect for eSpeed.
`You said the first position was chief technology
`Q.
`officer.
`What was the nature of your duties as chief
`technology officer?
`As the chief technology officer of eSpeed, I was
`A.
`responsible for the overall management of the technology
`division.
`So the global technology -- you know, the
`implementation of software, the management of our
`infrastructure, things like databases and e-mail
`systems, things of that nature.
`And the next position you mentioned was chief
`Q.
`information engineer; is that correct?
`That's correct.
`A.
`And describe to the jury what your positions were
`Q.
`in that position.
`As a CIO, my responsibilities, I sort of retained
`A.
`all the responsibilities of chief technology officer,
`still responsible for the oversight of all the
`technology, but my roles were expanded from the
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:23:15
`
`10:23:19
`
`10:23:22
`
`10:23:26
`
`10:23:30
`
`10:23:34
`
`10:23:42
`
`10:23:42
`
`10:23:45
`
`10:23:47
`
`10:23:48
`
`10:23:51
`
`10:23:54
`
`10:23:58
`
`10:24:00
`
`10:24:03
`
`10:24:04
`
`10:24:07
`
`10:24:09
`
`10:24:09
`
`10:24:12
`
`10:24:13
`
`10:24:16
`
`10:24:19
`
`10:24:21
`
`Page 13 of 259
`
`
`
`2196
`
`administrative standpoint where now I was responsible
`for maintaining that department, its budgets, the
`financing around those projections, vendor relationships
`and things like that.
`And you said your current position is chief
`Q.
`product architect?
`That's correct.
`A.
`And you've held that since 2004; is that right?
`Q.
`That's correct.
`A.
`And what are your duties as chief product
`Q.
`architect?
`So prior as the CIO and CTO, my responsibilities
`A.
`was for actually building it and operating the
`environment, and as chief product officer, I gave up the
`day-to-day responsibilities for the operational side,
`and what I focus now on is the overall design of our
`products, making sure that the designs of our products
`actually meet the customer's needs, and as new products
`come up and new customer requests come up, my role is to
`help formulate a plan for delivering the product.
`Let's talk a little bit about eSpeed.
`Tell the
`Q.
`jury what is eSpeed and what is eSpeed's business?
`So eSpeed is truly a technology company that
`A.
`specializes in the development and operation of software
`that enables our customers to trade financial products
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:24:25
`
`10:24:27
`
`10:24:30
`
`10:24:33
`
`10:24:34
`
`10:24:37
`
`10:24:38
`
`10:24:38
`
`10:24:41
`
`10:24:41
`
`10:24:44
`
`10:24:44
`
`10:24:50
`
`10:24:53
`
`10:24:55
`
`10:24:58
`
`10:25:03
`
`10:25:05
`
`10:25:08
`
`10:25:12
`
`10:25:15
`
`10:25:17
`
`10:25:19
`
`10:25:24
`
`10:25:28
`
`Page 14 of 259
`
`
`
`2197
`
`with one another in an automated manner.
`And when you say financial products, give the
`Q.
`jury an idea what you're referring to.
`Products like stocks and bonds, futures, foreign
`A.
`exchange.
`Now, is there a financial product that eSpeed is
`Q.
`most known for or that eSpeed focuses on?
`Yes, there is.
`A.
`And what is that?
`Q.
`So our primary business is centered around the
`A.
`operation of providing software for U.S. treasury bonds.
`And U.S. treasury bonds are what?
`Q.
`Treasury bonds are bonds that the federal
`A.
`government issues to help finance its debt.
`And does the government sell those bonds?
`Q.
`It does.
`A.
`And to whom does the government sell those bonds?
`Q.
`When the government issues new bonds, they sell
`A.
`those directly to what are known as primary dealers.
`And primary dealers are typically banks; is that
`Q.
`right?
`Primary dealers are large banks, financial
`A.
`institutions that have a specific -- you know, that have
`specifically registered with the fed to become primary
`dealers and have -- they have the actual obligation to
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:25:34
`
`10:25:37
`
`10:25:39
`
`10:25:41
`
`10:25:46
`
`10:25:46
`
`10:25:50
`
`10:25:52
`
`10:25:53
`
`10:25:54
`
`10:25:58
`
`10:26:01
`
`10:26:04
`
`10:26:10
`
`10:26:12
`
`10:26:15
`
`10:26:16
`
`10:26:19
`
`10:26:22
`
`10:26:25
`
`10:26:25
`
`10:26:28
`
`10:26:31
`
`10:26:33
`
`10:26:37
`
`Page 15 of 259
`
`
`
`2198
`
`actually buy from the government these bonds when
`they're issued.
`When we talk about these bonds and the market for
`Q.
`them, is the term cash market also used to describe
`that?
`That's correct.
`A.
`Now, where does eSpeed fit into the cash market?
`Q.
`So what eSpeed does is it operates a marketplace,
`A.
`think of it similar to an exchange, where we allow these
`primary dealers and lots of other customers, large --
`like institutional sized customers, not retail people
`like yourselves that can actually buy and sell these
`bonds with one another.
`Is the cash market the same thing as the futures
`Q.
`market?
`No, they're different.
`A.
`Okay.
`And how long has eSpeed been operating
`Q.
`this cash market?
`So eSpeed launched the first electronic
`A.
`marketplace for U.S. treasuries in mid 1999.
`And that was electronically; is that right?
`Q.
`That's correct.
`A.
`Now, how does a customer buy or sell treasuries
`Q.
`on eSpeed's cash market?
`So as part of our technology offering, what we
`A.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:26:40
`
`10:26:42
`
`10:26:43
`
`10:26:45
`
`10:26:49
`
`10:26:49
`
`10:26:50
`
`10:26:54
`
`10:26:58
`
`10:27:01
`
`10:27:03
`
`10:27:07
`
`10:27:11
`
`10:27:13
`
`10:27:16
`
`10:27:17
`
`10:27:18
`
`10:27:22
`
`10:27:23
`
`10:27:28
`
`10:27:31
`
`10:27:34
`
`10:27:34
`
`10:27:39
`
`10:27:40
`
`Page 16 of 259
`
`
`
`2199
`
`give to our customers, we provide our customers an
`application that they can use directly to interact with
`the marketplace and we also provide them with technology
`that allows them to build their own application that
`they choose to interact with that market.
`Okay.
`Now, as the chief product architect, what
`Q.
`is your role in eSpeed's cash market business?
`So I primarily focus on cash markets, and my role
`A.
`as the chief product architect is to make sure that the
`products that we offer to our customers meet the needs,
`you know, they're growing needs.
`Does eSpeed provide software for customers to use
`Q.
`to trade on the cash market?
`Yes, we do.
`A.
`And do they use -- is that software, does
`Okay.
`Q.
`it include a front end or a graphical user interface?
`Yes, some of our software does.
`A.
`Have we brought a slide that shows that?
`Q.
`I believe we have, yes.
`A.
`Okay.
`This has been marked as DTX 3800, Mr.
`Q.
`Can you tell the jury what is on this screen
`Noviello.
`right now?
`This is -- this is an image of the typical
`Sure.
`A.
`way a cash customer may set up the eSpeed screen to view
`U.S. treasuries, and, you know, this is what we call our
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:27:44
`
`10:27:46
`
`10:27:49
`
`10:27:53
`
`10:27:56
`
`10:27:58
`
`10:28:02
`
`10:28:05
`
`10:28:12
`
`10:28:15
`
`10:28:20
`
`10:28:21
`
`10:28:26
`
`10:28:28
`
`10:28:28
`
`10:28:32
`
`10:28:36
`
`10:28:37
`
`10:28:41
`
`10:28:42
`
`10:29:05
`
`10:29:07
`
`10:29:07
`
`10:29:14
`
`10:29:19
`
`Page 17 of 259
`
`
`
`2200
`
`grid product, and you can see here that there's actually
`five U.S. treasuries that are listed in maturity order,
`so the first one on the top of the screen is the
`two-year bond and the last one is the 30-year bond so
`they have different degrees of maturity and you can see
`the various prices that are available to buy and sell on
`the screen.
`Mr. Noviello, we won't go through this in great
`Q.
`detail, but you are obviously familiar with the futures
`screens at issue in this case, right?
`Yes, I am.
`A.
`Is this a different type of screen that is
`Q.
`involved in the futures market?
`This is our
`Yes, this is a different screen.
`A.
`grid screen, our futures screen is very different than
`this.
`At some point -- well, let me ask you
`Okay.
`Q.
`first, eSpeed today does not provide a futures exchange
`in the same way it provides a cash market; is that
`right?
`That's correct.
`A.
`When did eSpeed first start to offer connectivity
`Q.
`to the futures markets?
`I believe we first launched access in
`A.
`connectivity into the futures markets in late 2002.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:29:23
`
`10:29:25
`
`10:29:30
`
`10:29:33
`
`10:29:36
`
`10:29:39
`
`10:29:43
`
`10:29:44
`
`10:29:48
`
`10:29:50
`
`10:29:53
`
`10:29:54
`
`10:29:56
`
`10:29:57
`
`10:29:59
`
`10:30:02
`
`10:30:02
`
`10:30:09
`
`10:30:12
`
`10:30:12
`
`10:30:16
`
`10:30:16
`
`10:30:20
`
`10:30:21
`
`10:30:25
`
`Page 18 of 259
`
`
`
`2201
`
`Let's put up that time line we had up, No. 5.
`Q.
`And you've got there over in late 2002 eSpeed adds
`futures connectivity, and would you explain what you
`mean when you say that it added futures connectivity?
`Sure.
`So what we did, eSpeed, we don't operate
`A.
`an exchange or a marketplace for futures, that means we
`don't provide the matching of buyers and sellers
`together.
`What we simply do is allow customers to use
`our applications to submit orders to buy or sell futures
`and we simply route those to the appropriate exchange.
`So the connectivity component is what enables us to
`connect our core system to the external exchange.
`So what would be an example of an external
`Q.
`exchange that eSpeed provides connectivity to?
`Chicago Board of Trade, Chicago Mercantile
`A.
`Exchange, things of that nature.
`Why was it that eSpeed decided to add futures
`Q.
`connectivity at that time?
`ESpeed had and still does have a very strong
`A.
`customer base in U.S. treasuries, and what we were
`looking to do was to extend that customer base and
`extend the product offering that we had.
`So when we
`looked at our customers, we took a look at the other
`products that they trade, and many of our U.S. treasury
`customers also traded futures, so it seemed logical for
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:30:29
`
`10:30:35
`
`10:30:39
`
`10:30:43
`
`10:30:46
`
`10:30:51
`
`10:30:54
`
`10:30:57
`
`10:31:00
`
`10:31:05
`
`10:31:08
`
`10:31:12
`
`10:31:15
`
`10:31:19
`
`10:31:22
`
`10:31:25
`
`10:31:26
`
`10:31:30
`
`10:31:31
`
`10:31:35
`
`10:31:38
`
`10:31:41
`
`10:31:44
`
`10:31:47
`
`10:31:50
`
`Page 19 of 259
`
`
`
`2202
`
`us that if we enhanced our application offering to
`provide them access to futures, it not only gives us the
`opportunity to enter into a new business, but it also
`gave the customer more reason to continue to use our
`application for cash because it gave them access now to
`some other products as well.
`Okay.
`Now, when eSpeed first added futures,
`Q.
`connectivity, what screens would a trader use to trade?
`On our first -- on our initial launch of futures
`A.
`we provided just purely connectivity and we offered to
`our customers the ability to trade those through the
`application, that we already had available, so that was
`through a similar screen, the screen that you saw
`earlier for cash, as well as some other ways through our
`application.
`But through the traditional views that we
`had.
`Now, at some point, did eSpeed decide to
`Okay.
`Q.
`develop a screen specifically for trading on a futures
`market?
`Yes, we did.
`A.
`And when did that work begin?
`Q.
`So in early 2003, having launched a connectivity
`A.
`and not having made much progress with getting customers
`to use those existing screens, we decided that we should
`build a view that was more conducive and more similar to
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:31:53
`
`10:31:57
`
`10:32:01
`
`10:32:04
`
`10:32:06
`
`10:32:09
`
`10:32:10
`
`10:32:15
`
`10:32:19
`
`10:32:23
`
`10:32:26
`
`10:32:29
`
`10:32:32
`
`10:32:35
`
`10:32:39
`
`10:32:42
`
`10:32:42
`
`10:32:46
`
`10:32:49
`
`10:32:50
`
`10:32:50
`
`10:32:52
`
`10:32:56
`
`10:32:59
`
`10:33:04
`
`Page 20 of 259
`
`
`
`2203
`
`things that they were familiar with trading.
`And so you have put -- we have put on the time
`Q.
`line early 2003 for when eSpeed begins Futures View
`work; is that right?
`That's correct.
`A.
`And when we say Futures View, the jury has heard
`Q.
`that time, but to make sure we are on the same page,
`what are you referring to?
`What we called the Futures View was our initial
`A.
`product offering that we had that presented futures to
`customers to trade in a window that was something they
`were more familiar with than the cash marketplace.
`Okay.
`Now, who worked on the development of
`Q.
`Futures View when that process started?
`So there were a number of people within the
`A.
`organization that worked on it the product development
`team, someone name Mike Sweeting, myself, and then
`various developers; specifically, in this case, Bill
`Gill and Hanbi Ye were the developers that were involved
`with this implementation.
`And to jump ahead, when did Futures View first
`Q.
`come out and be available for use by traders?
`We introduced it in late 2003.
`A.
`And we put up on the time line there, eSpeed
`Q.
`releases Futures View in October of 2003.
`Is that about
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:33:08
`
`10:33:10
`
`10:33:14
`
`10:33:19
`
`10:33:19
`
`10:33:20
`
`10:33:25
`
`10:33:27
`
`10:33:28
`
`10:33:31
`
`10:33:35
`
`10:33:42
`
`10:33:45
`
`10:33:49
`
`10:33:51
`
`10:33:57
`
`10:33:59
`
`10:34:03
`
`10:34:06
`
`10:34:10
`
`10:34:12
`
`10:34:15
`
`10:34:19
`
`10:34:21
`
`10:34:26
`
`Page 21 of 259
`
`
`
`2204
`
`the time frame you're referring to?
`Yes, that's correct.
`A.
`Okay.
`Now, how did you decide what features and
`Q.
`functionality to use in the Futures View?
`We approached it very similar to the way we
`A.
`approach any new product.
`We take some initial ideas
`and thoughts, we communicate with our customers, and we
`basically try to obtain feedback from them on things
`that they need to see.
`Having released futures with
`grids and not gaining much ground, we received a lot of
`feedback that we needed to do X or Y, so, you know,
`speaking to our customers kind of gave us direction in
`which we should take.
`Okay.
`Now, when you talked to your customers,
`Q.
`did they reference features that were available on the
`market through other vendors?
`Yes, they did.
`A.
`And what other vendors did customers reference?
`Q.
`So the customers referenced things that they were
`A.
`familiar with or using at the time, so they referenced
`things like Ecco, Easy Screen, Trading Technologies, and
`other vendors.
`During this time between early 2003 and October
`Q.
`2003 that you were working with your team to design the
`Futures View, did you have any knowledge that TT had
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:34:29
`
`10:34:31
`
`10:34:31
`
`10:34:36
`
`10:34:39
`
`10:34:44
`
`10:34:47
`
`10:34:51
`
`10:34:53
`
`10:34:58
`
`10:35:01
`
`10:35:04
`
`10:35:07
`
`10:35:08
`
`10:35:10
`
`10:35:13
`
`10:35:14
`
`10:35:15
`
`10:35:18
`
`10:35:20
`
`10:35:23
`
`10:35:31
`
`10:35:31
`
`10:35:35
`
`10:35:39
`
`Page 22 of 259
`
`
`
`2205
`
`filed a patent application?
`No, we didn't have any knowledge of that.
`A.
`Did you have any knowledge that TT had a patent?
`Q.
`No, I did not.
`A.
`Okay.
`At the time that you were designing the
`Q.
`product, were you aware of any reason that would inhibit
`you or prevent you from using the features that
`customers talked about and wanted in the product?
`No, not at all.
`A.
`The
`All right.
`Let's put the Futures View up.
`Q.
`jury has seen this a number of times before, but just to
`make sure that we're all talking about the same thing,
`it would be slide 2.
`And is that eSpeed's Futures View,
`Mr. Noviello?
`Yes, this is an illustration of the original old
`A.
`product that we had for the futures.
`Okay.
`And I think the jury has heard an awful
`Q.
`lot about how this works, so I just want to focus on one
`Are you familiar with something called
`part of it.
`automatic recentering or auto recentering?
`I am.
`A.
`Would you describe to the jury what auto
`Q.
`recentering is?
`What auto recentering is as the prices change,
`A.
`the prices and quantities associated with those prices
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:35:42
`
`10:35:43
`
`10:35:46
`
`10:35:50
`
`10:35:54
`
`10:35:57
`
`10:36:02
`
`10:36:05
`
`10:36:07
`
`10:36:08
`
`10:36:12
`
`10:36:14
`
`10:36:17
`
`10:36:22
`
`10:36:22
`
`10:36:27
`
`10:36:29
`
`10:36:32
`
`10:36:35
`
`10:36:37
`
`10:36:43
`
`10:36:44
`
`10:36:51
`
`10:36:52
`
`10:36:56
`
`Page 23 of 259
`
`
`
`2206
`
`are updated on the screen, and during volatile periods
`or active periods in the market, it's likely that the
`best price that you can actually buy or sell travels off
`the top or the bottom of those prices that you see.
`So
`what automatic recentering does for a user is whatever
`that price, the best bid or best offer travels off the
`top or down towards the bottom, the application
`automatically repositions it to the middle of the screen
`and so it auto recenters it back to the middle of the
`screen so the customer always has a view of what the
`best market is.
`I think you anticipated my next question.
`Q.
`it that you added that feature, auto recentering?
`I think one of the most important things for the
`A.
`user is to make sure that they are looking at the
`current condition of the market so it was important that
`they see what was valid and not something that had moved
`off the screen, so we did it for that reason, it was
`logical and necessary to make sure that they can always
`see what the best prices are.
`Was automatic recentering something that traders
`Q.
`were required to use?
`No, it was not.
`A.
`And
`Let's show another slide, number 3, please.
`Q.
`we --
`I think you can see it on your monitor.
`Maybe
`
`Why is
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`10:36:56
`
`10:37:03
`
`10:37:04
`
`10:37:07
`
`10:37:11
`
`10:37:15
`
`10:37:19
`
`10:37:22
`
`10:37:25
`
`10:37:25
`
`10:37:34
`
`10:37:34
`
`10:37:35
`
`10:37:38
`
`10:37:41
`
`10:37:43
`
`10:37:46
`
`10:37:49
`
`10:37:53
`
`10:37:56
`
`10:37:58
`
`10:38:01
`
`10:38:02
`
`10:38:03
`
`10:38:09
`
`Page 24 of 259
`
`
`
`2207
`
`you can describe, Mr. Noviello, what's in that menu box?
`So what you see here is if a user -- it's been a
`A.
`while, so I don't know exactly.
`I think