UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Page 1
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`IBG LLC and INTERACTIVE :
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`BROKERS, LLC, :
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` Petitioners, :
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` vs. :Case CBM2016-00009
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`TRADING TECHNOLOGIES :Patent 7,685,055 B2
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`INTERNATIONAL, INC., :
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` Patent Owner. :
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` Washington, D.C.
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` Thursday, July 14, 2016
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`Deposition of:
`
` DAVID RHO
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`Called for oral examination by counsel for Patent
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`Owner, pursuant to notice, at the law offices of
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`Sterne Kessler Goldstein Fox, 1100 New York
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`Avenue, Northwest, Washington, D.C., before Denise
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`M. Brunet, RPR, a Notary Public in and for the
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`District of Columbia, beginning at 9:05 a.m., when
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`were present on behalf of the respective parties:
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`TRADING TECH EXHIBIT 2331
`IBG ET AL. v. TRADING TECH
`CBM2016-00009
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`
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Page 1
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`IBG LLC and INTERACTIVE :
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`BROKERS, LLC, :
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` Petitioners, :
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` vs. :Case CBM2016-00009
`
`TRADING TECHNOLOGIES :Patent 7,685,055 B2
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`INTERNATIONAL, INC., :
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` Patent Owner. :
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` Washington, D.C.
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` Thursday, July 14, 2016
`
`Deposition of:
`
` DAVID RHO
`
`Called for oral examination by counsel for Patent
`
`Owner, pursuant to notice, at the law offices of
`
`Sterne Kessler Goldstein Fox, 1100 New York
`
`Avenue, Northwest, Washington, D.C., before Denise
`
`M. Brunet, RPR, a Notary Public in and for the
`
`District of Columbia, beginning at 9:05 a.m., when
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`were present on behalf of the respective parties:
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`TRADING TECH EXHIBIT 2331
`IBG ET AL. v. TRADING TECH
`CBM2016-00009
`
`
`
` A P P E A R A N C E S
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`Page 2
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`O n b e h a l f o f t h e P e t i t i o n e r s :
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` R I C H A R D M . B E M B E N , E S Q U I R E
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` L O R I A . G O R D O N , E S Q U I R E
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` S t e r n e K e s s l e r G o l d s t e i n F o x
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` 1 1 0 0 N e w Y o r k A v e n u e , N o r t h w e s t
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` W a s h i n g t o n , D . C . 2 0 0 0 5
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` ( 2 0 2 ) 3 7 1 - 2 6 0 0
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` r b e m b e n @ s k g f . c o m
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`O n b e h a l f o f t h e P a t e n t O w n e r s :
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` M I C H A E L D . G A N N O N , E S Q U I R E
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` M c D o n n e l l B o e h n e n H u l b e r t &
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` B e r g h o f f , L L P
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` 3 0 0 S o u t h W a c k e r D r i v e
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` C h i c a g o , I l l i n o i s 6 0 6 0 6
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` ( 3 1 2 ) 9 1 3 - 0 0 0 1
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` g a n n o n @ m b h b . c o m
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`( A p p e a r a n c e s c o n t i n u e d o n t h e n e x t p a g e . )
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`APPEARANCES (continued):
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`Page 3
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`On behalf of the Patent Owners (continued):
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` KEVIN D. RODKEY, ESQUIRE
`
` Finnegan, Henderson, Farabow, Garrett &
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` Dunner, LLP
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` 271 17th Street, Northwest
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` Suite 1400
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` Atlanta, Georgia 30363
`
` (404) 653-6400
`
` kevin.rodkey@finnegan.com
`
` Veritext Legal Solutions
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` Mid-Atlantic Region
`
` 1250 Eye Street NW - Suite 350
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` Washington, D.C. 20005
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`Veritext Legal Solutions
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` C O N T E N T S
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`EXAMINATION BY: PAGE:
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`Counsel for Patent Owner 5
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`Page 4
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`TRADING TECH DEPOSITION EXHIBITS: PAGE:
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`2330 - Diagram of non-compressed price
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` display method and compressed price
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` display method 42
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` (*Exhibit attached to the transcript.)
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` P R O C E E D I N G S
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`WHEREUPON,
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` DAVID RHO,
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`called as a witness, and after having been first
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`duly sworn, was examined and testified as follows:
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` EXAMINATION BY COUNSEL FOR PATENT OWNER
`
`BY MR. GANNON:
`
` Q Good morning, Mr. Rho.
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` A Good morning.
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` Q Nice to see you again.
`
` A Good to see you as well.
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` Q Could you state your name for the record,
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`please.
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` A Yes. My name is David Rho, R-H-O.
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` Q And your address?
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` A My current address is 60 Demott Street,
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`D-E-M-O-T-T, in Tenafly, New Jersey.
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`T-E-N-A-F-L-Y.
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` Q Okay. And you understand you're under
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`oath this morning, correct?
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` A I do.
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` Q And that means you're sworn to tell the
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`truth just as if you were testifying before a
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`jury, correct?
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` A I understand that, yes.
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` Q Okay. Is there anything that would
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`prevent you from providing truthful and accurate
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`testimony today?
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` A Not that I'm aware of, no.
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` Q Okay. You're not on any medication that
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`would prevent you from doing so?
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` A No, I am not.
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` Q I know you've been deposed before. We
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`met on some other TT patents, so I know you're
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`familiar with the proceedings. But if you don't
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`understand any of my questions, please just let me
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`know and I'll try to rephrase them. Okay?
`
` A Okay.
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` Q Is it fair for me to assume that if I ask
`
`you a question and you provide an answer, that
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`you've understood my question?
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` A Yes, but I would, of course, reserve the
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`right to change my answer if I realize that I
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`didn't understand the question.
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` Q Okay. Fine. And we'll be -- we can take
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`a break whenever you'd like. Just let me know.
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` A Okay.
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` Q I just ask that if a question is pending,
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`that you provide an answer to the question before
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`we break.
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` A Yes, of course.
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` Q And you understand that at the break,
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`you're not permitted to discuss your testimony
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`with counsel, correct?
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` A Yes. I've been instructed as such.
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` Q Did you prepare for the deposition today?
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` A Yes, I did.
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` Q And what did you do to prepare?
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` A I spoke with counsel. I reviewed
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`documents. And I think I'm not allowed to dig
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`into any of the details, but that's pretty much
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`what we did.
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` Q About how long did you take preparing for
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`the deposition today?
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` A Less than a day.
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` Q Was that yesterday?
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` A That was yesterday.
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` Q And who did you meet with to prepare for
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`the deposition today?
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` A I met with Rich and with Lori.
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` Q Okay. Did you review any documents?
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` A Yes, we did.
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` Q What documents did you review?
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` A I reviewed my declaration. I reviewed
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`the patent. I reviewed most of the listed
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`materials in my -- for my declaration, and I
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`reviewed the petition and the institution -- the
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`institution decision.
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` Q Okay. You said that you --
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` A Oh. Also, I reviewed my transcripts from
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`my two previous depositions.
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` Q What two previous depositions was that?
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` A So that was the -- the one that we did a
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`couple of months ago, or a month or so ago, and
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`then for the TD.
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` Q Okay. And you said you reviewed some of
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`the listed materials; is that right?
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` A Yes.
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` Q But not all the listed materials?
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` A Not necessarily all, no.
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` Q Why is that? Why did you pick some but
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`not others?
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` A It was -- I think it was a practical
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`matter. There were items such as the case file.
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`We didn't review that.
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` Q So let me hand you what's been marked as
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`Exhibit 1004 in the '055 CBM.
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` So, Mr. Rho, I've handed you what's been
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`marked as Exhibit 1004. Do you recognize it?
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` A Yes, I do.
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` Q And what is it?
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` A This is my declaration for the '055
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`patent.
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` Q And did you prepare this exhibit?
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` A This exhibit was prepared in close
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`collaboration with counsel.
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` Q And what does that mean?
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` A That means that we worked together. We
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`crafted words together. So some of the words are
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`mine; some of the words may have been crafted by
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`the attorneys, in large part, to ensure that it
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`met legal standards. But the substantive content
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`of the document was prepared -- or at least was
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`prepared with input from me or was actually
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`crafted by myself.
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` Q You said in your previous answer that
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`some of the words are yours; is that right?
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` A Yes.
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` Q Do you know which ones are yours?
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` A This was a long collaboration, and I
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`couldn't point out exactly which words are mine
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`and which words were necessarily crafted by the
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`attorneys. But, regardless, I did review the
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`entire document --
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` Q Okay.
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` A -- and read it front to back several
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`times.
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` Q Okay. That was going to be my next
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`question, which words were selected by counsel?
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`Do you know?
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` A I wouldn't be able --
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` MR. BEMBEN: Objection. Work product.
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` You don't need to answer that question.
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`BY MR. GANNON:
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` Q Are you going to follow that instruction?
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` A I'll follow my attorney's advice, yes.
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` Q Okay. This particular declaration
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`references something called TSE, correct? And in
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`particular, I'm looking at page 9 of your
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`declaration.
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` A The first word on that page,
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`paragraph 28, is TSE. So yes.
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` Q Okay. And in this -- this is section 4
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`of your declaration, correct?
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` A I apologize. Once again -- I think this
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`happened the last time. The formatting was --
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`there was an error in the formatting. So it goes
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`from section 1 to section 2, back to section 1, to
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`section 3. So this is -- should actually be
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`section 5, but it's labeled as section 4.
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` Q Okay. So in paragraphs 28 through 36,
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`there appears to be a discussion of your
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`understanding of how TSE operates. Is that a fair
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`statement?
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` A I apologize. I'm just trying to get this
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`to stop buzzing.
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` Q No problem.
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` A I'm sorry. Could you repeat the
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`question?
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` Q Sure. Paragraphs 28 through 36 of your
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`declaration appear to be a description of your
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`understanding of how TSE operates. Is that a fair
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`statement?
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` A Well, the section is also -- this
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`subsection A is also listed as overview. So, yes,
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`that would be a fair assessment.
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` Q That's an overview of how you believe TSE
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`operates, right?
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` MR. BEMBEN: Objection. Mischaracterizes
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`testimony.
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` THE WITNESS: I believe this is more of a
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`review of the TSE document and what it describes.
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`BY MR. GANNON:
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` Q Right. And paragraphs 28 through 36
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`include a description of your understanding of
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`TSE. Is that a fair statement?
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` MR. BEMBEN: Objection. Asked and
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`answered.
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` THE WITNESS: Could you put a little bit
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`more context around that, because it's pretty
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`broad. You just asked a very broad question.
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`BY MR. GANNON:
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` Q I'm just trying to -- just a general
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`question. In paragraphs 28 through 36 --
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` A Yes.
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` Q -- those paragraphs deal with your
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`understanding of how TSE operates. Is that a fair
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`statement?
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` MR. BEMBEN: Objection. Foundation.
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`Asked and answered.
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` THE WITNESS: So if you're talking about
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`TSE as a whole, so floor versus electronic -- I
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`mean, that's why I'm -- you're saying you're
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`asking a general question, but you're asking a
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`very, very broad question. So does it give me a
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`full understanding as to how TSE as a whole works?
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`No.
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`BY MR. GANNON:
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` Q Okay. Well, what was the purpose of this
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`overview section, then? When I say overview
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`section, I'm referring to paragraphs 28 through
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`36, just generally.
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` A So this was to really cover the trading
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`system, this futures and options purchase system
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`that was described in the TSE document that I did
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`review.
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` Q Okay.
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` A So this was to summarize my findings on
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`that and -- the pertinent findings because the
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`document itself is quite large and covers areas
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`that are outside of the scope of the patent.
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` Q Okay. Let me show you what's been marked
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`as Exhibit 1008 in the '055 CBM. And, Mr. Rho, I
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`just wanted to ask you a general question, and
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`feel free to look at it, but do you recognize
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`Exhibit 1008?
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` A Yes. This is the TSE manual for the
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`futures options purchasing system, trading
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`terminal operation guide.
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` Q Okay. And the information in this
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`particular manual, Exhibit 1008, formed the basis
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`of your overview section of TSE in your
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`declaration that we were just referring to?
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` A Yes, it did.
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` Q Okay. So let's go to your declaration.
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`I just have some questions about -- pertaining to
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`this overview section where you're describing TSE.
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`And, in particular, I have a question with respect
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`to paragraph 32. And in the middle of
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`paragraph 32 -- about the middle of paragraph 32,
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`you say the trader sets the price display method
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`by selecting a radio button. Do you see that?
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` A Yes.
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` Q And the radio button that you're
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`referring to there enables you to switch between
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`compressed and uncompressed; is that right?
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` A That's my understanding, yes.
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` Q Okay. So let me just ask you this: In
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`TSE, how does a user switch from compressed to
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`uncompressed and vice versa?
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` A Well, I'll read you from the TSE
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`document, page 69: Setting method, selecting the
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`sequence of setting, 5 Board/Quotation screen
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`setting -- that was in double quotes -- from the
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`main window's menu bar. Select the radio button
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`by the attached information that you wish to set
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`up for each screen in the -- again in double
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`quotes -- attached information typesetting column,
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`end quote, of the, double quote, Board/Quotation
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`screen setting instruction input window, end
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`quote. And then the third line is, Make the
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`setting by the attached information type by
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`operating send, enter.
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` Q Does this part -- now you're referring to
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`Exhibit 1008, correct, page 69?
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` A Page 69 of Exhibit 1008. That's correct.
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` Q Does that show the radio button, that
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`page?
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` A It shows several radio buttons on this
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`page.
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` Q Can you describe them? You're looking at
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`the figure on page 69?
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` A I'm looking at the figure 6-4 on page 69,
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`yes.
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` Q What does that figure show?
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` A It shows a dialog box with a number of
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`radio buttons, some of which appear to be
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`selected, some of which appear to be nonselected.
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`And then, in the lower right-hand corner, it
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`appears to have two buttons that -- one is likely
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`send and the other is likely cancel. It's a
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`little difficult to read this figure.
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` Q The send and cancel, where are those?
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` A That would be in the lower right-hand
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`corner. That's a typical GUI -- that would be
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`what you would typically do in a GUI, is you would
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`put them towards the bottom or on the right-hand
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`side.
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` Q Is that written in Japanese?
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` A It's obscured, so I wouldn't be able to
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`tell you what language it's in. It is likely that
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`it is in Japanese.
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` Q Do you read Japanese?
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` A No, I do not.
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` Q So how do you know which one is the --
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`how do you know, then, how those buttons in the
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`lower right-hand corner are labeled?
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` A How do I know? That's general
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`convention. That's general convention for GUIs is
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`that you have the ability to tell the system that
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`you would like to accept your changes and then you
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`also give the user an opportunity to cancel any
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`changes that you put in place.
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` Q In this figure on page 69, can you
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`actually identify the cancel button?
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` A No, I cannot.
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` Q What was the other button that you
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`referred to in the lower right-hand corner?
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` A Again, I refer back to the text above,
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`which calls it send, enter.
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` Q Can you identify the send button on
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`page 69?
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` A No, I cannot.
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` Q Okay. Which radio button sets the screen
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`for compressed or uncompressed in the figure shown
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`on page 69?
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` A I can't be sure.
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` Q All right. Let me direct your attention
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`to paragraph 33 of your declaration. And this
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`appears to show, at the top of the page, two
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`screens, one uncompressed and one compressed. Is
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`that a fair statement?
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` A Well, one is labeled non-compressed and
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`the other is labeled compressed.
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` Q Okay. Is non-compressed the same as
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`uncompressed? I just want to get the terminology
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`right. Because in this case, I've heard it
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`referred to as uncompressed as well.
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` A Uncompressed and non-compressed are
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`effectively the same thing, yes.
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` Q Okay. What would you prefer -- what
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`language would you prefer to use, and I'll try to
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`use it, just to be consistent, uncompressed or
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`non-compressed?
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` A I have no real -- I have no real -- no
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`real preference.
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` Q Okay. And then paragraph 33 below, you
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`talk about a board screen, and you refer to a
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`basic board screen. Do you see that in the middle
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`of paragraph 33?
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` A A board screen that does not scroll is
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`called a basic board screen. Is that what we're
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`Page 20
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`referring to?
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` Q Right.
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` A Okay.
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` Q So the basic board screen -- when you're
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`in the basic board screen, there's no scroll,
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`right?
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` MR. BEMBEN: Objection. Foundation.
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` THE WITNESS: Well, I'll refer to
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`page 115 of the -- Exhibit 1008. The first
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`bulleted paragraph: A board screen that does not
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`scroll is called a basic board screen wherein the
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`display of the board information is updated so
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`that the board display center price is
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`continuously displayed at the center part of the
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`board.
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`BY MR. GANNON:
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` Q So in the basic board screen, there's no
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`scrolling, right?
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` MR. BEMBEN: Objection. Mischaracterizes
`
`his testimony. Foundation.
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` THE WITNESS: I'll again refer to the TSE
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`document on page 110. It's description number 5,
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`scroll buttons and home button. So the first one
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`has an up arrow. Clicking this button with a
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`mouse scrolls the prices upward one price at a
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`time. A down arrow. Clicking this button with
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`the mouse scrolls the prices downward one price at
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`a time. And the H. Clicking this button with the
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`mouse after the board information has been
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`scrolled causes the screen to return to the basic
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`board screen, with the board display center price
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`at the center.
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` So the screen itself is in a non -- when
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`it's in basic board screen mode, it is not in a
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`scrolling mode, but to say that it does not scroll
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`or is not -- I guess you have to define what
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`you're asking for when it says does not scroll.
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`Is it incapable of scrolling? Is it capable of
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`scrolling but isn't in a scrolling mode?
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`What's -- what's the question?
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`BY MR. GANNON:
`
` Q Okay. Well, let's look at
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`paragraph 33 --
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` A Sure.
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` Q -- where you say, in the middle of the
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`paragraph, a board screen -- do you see where it
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`says, in the middle, a board screen, quote, that
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`does not scroll is called a basic board screen,
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`unquote -- do you see that?
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` A Yes.
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` Q So in the basic board screen, there's no
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`scrolling going on, correct?
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` A When it's in basic board screen mode, it
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`is not being manually scrolled.
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` Q I just want to make sure we're talking
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`about the same thing. So what you said here is
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`accurate, a board screen that does not scroll is
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`called a basic board screen. Is that accurate?
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` A It's a quote from the TSE document.
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`So -- you would have to make sure that -- overall,
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`that would have to be placed in the context of the
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`rest of the document, but, yes, that is accurate.
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` Q Okay. Now, the last sentence of
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`paragraph 33, you say, For purposes of this
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`proceeding, I refer to the board screen as having
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`a basic board screen mode and a scrolling screen
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`Page 23
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`mode.
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` Do you see that?
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` A That is the last sentence in that
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`paragraph, yes.
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` Q Right. When you said -- when you say in
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`that sentence, basic board screen mode and
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`scrolling screen mode, what do you mean by the
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`word "mode"? What does that mean?
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` A Well, I'm not a dictionary, but
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`essentially, those two -- those are two
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`different -- I'm sorry, I hate using -- I know
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`they say you're not supposed to use the word when
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`describing something. So there are two different
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`possible settings you can have the screen working
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`in. So basic board screen mode is one way for the
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`screen to be displayed and updated. And then
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`scrolling screen mode is a different way to have
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`the information updated and displayed.
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` Q All right. So let's look at page 115 of
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`the TSE document, Exhibit 1008. Are you at
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`page 115?
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` A Yes.
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` Q Okay. Do you see in the middle of the
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`page where it refers to the basic board screen in
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`the middle?
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` A The paragraph starts, In a basic board
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`screen.
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` Q All right. And then at -- well,
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`actually, let me -- before I ask you that, let me
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`go to paragraph 32 of your declaration. Are you
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`at paragraph 32?
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` A Yes, I'm at paragraph 32.
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` Q You say, The trader can select from two
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`price display methods, non-compressed or
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`compressed method.
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` Do you see that?
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` A Yes.
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` Q Are the compressed and non-compressed
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`methods you refer to in paragraph 32, are those
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`compressed and non-compressed modes?
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` A It could be referred to as that, yes.
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` Q And why is that?
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` A When it's in non-compressed mode, it
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`displays all of the prices that are available
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`regardless of if there's a bid or an offer at that
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`level. And then there's the compressed method
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`which skips over any prices -- still in ascending
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`order of prices, but it skips over any prices that
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`do not have a bid or an offer available at that
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`level.
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` Q Okay. So let's talk about this
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`uncompressed and compressed, because I have some
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`questions about that. So on page 12 of your
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`declaration, there's that figure at the top of the
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`page which shows non-compressed and compressed,
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`right?
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` A Yes.
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` Q And in the compressed screen, the center
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`price is always positioned in the center of the
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`axis. Is that a fair statement?
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` MR. BEMBEN: Objection. Foundation.
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` THE WITNESS: Okay. I'll refer back to
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`page 115. It is the third bullet point on that
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`page. In the compressed price display mode, the
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`board displayed center price is automatically
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`revised and displayed continuously at the center
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`of the board.
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` The next bullet point. In addition, in
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`the scrolling screen, the price display
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`portions -- positions -- I apologize -- do not
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`change automatically.
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` So in what mode are we in? Are we in a
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`scrolling screen mode or are we in the more -- the
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`non-scrolling screen mode?
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`BY MR. GANNON:
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` Q Well, let me -- I guess let me ask you
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`that just to clarify. On page 12 of your
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`declaration, the figure on the right at the top of
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`the page, is that -- what mode is that in?
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` A That's in a compressed price display
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`mode.
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` Q And is that in a scrolling mode or a
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`non-scrolling mode?
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` A That is in a non-scrolling mode.
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` Q How do you know that?
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` A I'm going to refer to page 116 of the TSE
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`document. It's in the box with the exclamation
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`point in there. It's the second bullet point.
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`The information of the over and under fields is
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`not displayed if the screen is scrolled.
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` So if you look at the scrolling operation
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`figure that's below, you could see there's the
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`first one, which is in a non-scrolling mode. When
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`it's switched to a scrolling screen mode, the over
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`and under that was in the first piece is no longer
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`there. And then, when you go back to the basic
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`board screen mode, the over and under come back
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`and are displayed.
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` So we'll go back to the compressed price
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`display method that is being shown on page 12 of
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`my declaration. It says over and under. That
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`signifies that it is in a non-scrolling screen
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`mode.
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` Q Okay. When you're in a compressed mode,
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`can you go from a non-scrolling screen mode to a
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`scrolling screen mode?
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` A Well, again, I'll refer back to page 115
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`of the TSE document, that last bullet point. In
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`addition, in a scrolling screen, the price display
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`positions do not change automatically.
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` And the previous one, which is talking
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`about, in the compressed price display mode, the
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`board display center price is automatically
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`revised and displayed continuously at the center
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`part of the board.
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` Those two statements in conjunction seem
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`to point to the fact that you can turn this from a
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`non-scrolling mode to a scrolling mode.
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` Q Okay. So let's get back to the original
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`question I think I was asking you about the
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`compressed mode when it's not scrolling. I want
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`to limit my question to that -- my next question
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`to that. Fair enough?
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` A Compressed mode when it is non-scrolling.
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`Okay.
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` Q Right. And, again, I'm going to refer
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`you back to your declaration on page 12, which is
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`the figure on the right. That is the compressed
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`mode, non-scrolling, correct?
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` A Compressed mode, non-scrolling, yes.
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` Q Okay. Do you see the price 004 in that
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`screen?
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` A The price 004, yes. 004.
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` Q Is that in the center of the compressed
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`mode screen?
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` A It looks to be approximately in the
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`center, yes.
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` Q And just so I'm clear, where price 004
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`is, that's the center position of the compressed
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`mode, correct?
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` MR. BEMBEN: Objection. Foundation.
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` THE WITNESS: Well, when referencing the
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`size of the window compared with the
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`non-compressed price display method figure, it
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`appears there are nine lines in total. And so
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`it's the fifth line up that would be the center.
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`So it looks to be in approximately the same
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`location in the compressed price display figure.
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`So, yes, I'd say that is in the center.
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`BY MR. GANNON:
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` Q Okay. And in this particular figure on
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`the right on page 12 of your declaration, the
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`center price is 004, correct?
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` A I believe I answered that question
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`Page 30
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`already.
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` Q And that's yes?
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` A Yes.
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` Q Okay. And the center price will always
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`appear at this position in the compressed mode,
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`correct?
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` A Again, I'll refer you to page 115 of the
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`TSE document. In addition, in a scrolling screen,
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`the price display positions do not change
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`automatically.
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` So if we are limited to the non-scrolling
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`mode, then the board display center price,
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`whatever that happens to be, that is what will be
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`displayed at the center of the board continuously.
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` Q I'm still asking about non-scrolling.
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`You understand that, right?
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` A Sorry, I guess I -- it's sometimes hard
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`to keep all the context in place. But, yes, if
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`it's non-scrolling, then whatever is defined as
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`the board display center price will be displayed
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`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
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`at the center of the screen continuously.
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` Q Okay. So, for example, on the figure on
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`the right on page 12, the center price will never
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`appear in the position marked 007, correct?
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` MR. BEMBEN: Objection. Foundation.
`
`BY MR. GANNON:
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` Q And, again, I'm limiting my question to
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`non-scrolling.
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` A "Never" is a very strong word. So it
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`depends on what is defined as the board display
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`center price. So what it is in this case, I could
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`not be 100 percent certain, but if it is last
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`contract price, if it traded at 007 for its
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`last -- the last time, then 007 would become the
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`center -- the board display center price and
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`would, therefore, be displayed in the middle.
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` Q Yeah, but I'm asking you about what's
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`shown on page 12 of your declaration. The center
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`price is 004, right, in the non-scrolling mode?
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` A Okay. I just want to make sure I have
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`the question, again, just so that I --
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` Q Okay. So on page 12 of your declaration,
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`Pag
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