UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`IBG LLC and INTERACTIVE BROKERS LLC,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`____________________
`
`Case CBM2016-00009
`Patent No. 7,685,055
`
`____________________
`
`
`DECLARATION OF DAVID RHO IN SUPPORT OF
`PETITIONERS’ REPLY TO PATENT OWNER’S RESPONSE
`
`
`IBG 1035
`IBG v. TT
`CBM2016-00009
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`IBG LLC and INTERACTIVE BROKERS LLC,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`____________________
`
`Case CBM2016-00009
`Patent No. 7,685,055
`
`____________________
`
`
`DECLARATION OF DAVID RHO IN SUPPORT OF
`PETITIONERS’ REPLY TO PATENT OWNER’S RESPONSE
`
`
`IBG 1035
`IBG v. TT
`CBM2016-00009
`
`
`
`CBM2016-00009
`U.S. Pat. No. 7,685,055
`
`I, David Rho, declare as follows:
`
`1.
`
`I have been engaged by Sterne, Kessler, Goldstein & Fox P.L.L.C. on
`
`behalf of IBG LLC and Interactive Brokers LLC (“Petitioners”) for the above-
`
`captioned Covered Business Method Review proceeding. I understand that this
`
`proceeding involves United States Patent 7,685,055, entitled “System and Method
`
`for Automatic Repositioning of Market Information in a Graphical User Interface,”
`
`by Harris Brumfield, et al., filed May 3, 2006, and issued March 23, 2010 (the
`
`“’055 patent”). I understand that the ’055 Patent is currently assigned to Trading
`
`Technologies International, Inc. (“TT”).
`
`2.
`
`I have reviewed the following documents in making this declaration:
`
` The ’055 patent (Exhibit 1001).
`
` My previous declaration in this proceeding (Exhibit 1004).
`
` A certified translation of “Futures/Option Purchasing System Trading
`
`Terminal Operation Guide” (“TSE”) (Exhibit 1008).
`
` The Board’s April 28, 2016 Institution Decision (“Decision”) (Paper
`
`20).
`
` The transcript of my July 14, 2016 deposition (Exhibit 2331).
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
` TT’s July 21, 2016 Patent Owner Response (“POR”) (Paper 32).
`
`I. MY UNDERSTANDING OF CLAIM CONSTRUCTION
`3.
`I understand that, during a Covered Business Method Review, claims
`
`are to be given their broadest reasonable construction in light of the specification
`
`as would be read by a person of ordinary skill in the relevant art.
`
`II. LEVEL OF ORDINARY SKILL IN THE ART
`4.
`One of ordinary skill in the art at the time of the alleged invention,
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`would have had the equivalent of a Bachelor’s degree or higher in computer
`
`science or computer engineering and at least 2 years working experience designing
`
`and/or programming graphical user interfaces, and direct or indirect experience
`
`with trading or related systems. Experience could take the place of some formal
`
`training, as domain knowledge and user interface design skills may be learned on
`
`the job. This description is approximate, and a higher level of education or skill
`
`might make up for less experience and vice versa.
`
`III. “PRICE LEVELS”
`5.
`Claims 1 and 17 of the ’055 patent recite the term “price levels.” For
`
`example, claim 1 recites “displaying a first plurality of price levels along a static
`
`price axis ….” (’055 patent, 34:24-25.) I understand that TT argues that “a price
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`level is a location/area provided on the screen within which a price may be (but is
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`not required to be) displayed.” (POR, p. 41.) I also understand that TT argues that
`
`blank (unpopulated) locations along the price axis in TSE’s compressed mode are
`
`“price levels.” (Id. at 60-64.) For example, below I reproduced the figure on page
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`0068 of TSE, which illustrates TSE’s compressed mode on the right-hand side.
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`(TSE, p. 0068.) TT argues that the blank location above the price 007 and the
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`blank location below the price 002 are “price levels.” (POR, p. 41.) Below, I
`
`included a red arrows to illustrate these locations.
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`
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`6.
`
`I disagree with TT’s interpretation of the term “price levels.” A person
`
`of ordinary skill in the art (“POSITA”) at the time of the ’055 patent would have
`
`understood a price level to correspond to a definite price, regardless of whether the
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`price is displayed. A POSITA would have understood a blank location on the
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`screen within TSE’s price axis as merely white space with no corresponding price,
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`and thus not a price level.
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`The ’055 specification supports my position. It emphasizes the
`
`7.
`
`importance of a trader observing the market at different price levels:
`
`Traders gain an advantage by seeing the market depth because they can see
`trends in the orders in the market. The market depth display shows the trader
`the interest the market has in a given commodity at different price levels.
`(’055 patent, 7:16-19 (emphasis added).)
`
`In a fast moving market, where varying price levels are trading (i.e. bids and
`offers entering the market are being matched at different prices), it is
`beneficial that the trader be able to quickly enter orders and quickly see and
`analyze market information.
`(Id. at 7:35-39 (emphasis added).)
`
`8.
`
`The trader’s observations would have little value if the price levels did
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`not correspond to definite prices. Said another way, the trader could not gain the
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`advantage described in the ’055 specification of “seeing the market depth at
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`different price levels” by viewing blank locations on the TSE compressed price
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`display screen. These blank locations refer to unknown prices where a new and
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`unknown price could potentially be displayed at some point in the future.
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`9.
`
`The ’055 specification also uses the terms price and price level
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`interchangeably, which further informs my opinion that a POSITA would have
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`understood a price level to correspond to a definite price. For example, the ’055
`
`specification states:
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`Should the trader drag and drop that working quantity to the price of 102.57,
`the entire quantity of 30 (all three lots) will move cohesively to the new
`price level.
`(’055 patent, 28:42-45 (emphasis added).)
`
`Should the trader choose to drag and drop the working quantity from one
`price level to another, all of the working quantity associated with the cell
`and price level at which the drag and drop is performed will be moved to the
`new price level. As a result, the trader does not have to perform three
`separate drag and drop actions and valuable time can be saved, which could
`help to ensure that the quantities are entered and filled at their intended
`prices.
`(Id. at 28:58-65 (emphasis added).)
`
`10. These examples demonstrate that the ’055 specification uses the terms
`
`“price” and “price level” interchangeably. They also demonstrate that a price level
`
`corresponds to a definite price. A POSITA, reading these examples, would have
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`understood the trader to drag and drop the working quantity to a definite price. If
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`the trader dragged and dropped the order to an area without a definite price, the
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`system would not know the new price to assign to the working order.
`
`IV. OVERVIEW OF TSE
`11. TSE is a “Futures/Options Purchase System” that “handles the trades”
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`in the bond futures, bond future option, index futures, index option, and stock
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`option markets. (TSE, p. 0035.) As explained by TSE, “[e]ach aforementioned
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`market may have a different price display, and input unit, etc.” (Id.)
`
`12. The system of TSE includes a client computer. (Id. at 0006-09.) The
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`client computer “has a number of functions such as inputs of various orders, resale
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`and buy back/rights, exercises, various inquiries, various work operation
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`instructions, and board information inquiries responding to the information display
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`and the printer control function.” (Id. at 0013.) “The basic operation of the client is
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`almost equal to that of the Windows personal computer.” (Id. at 0026.) The client
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`“can be operated by the ‘keyboard’ or ‘mouse’.” (Id. at 0013.) When using the
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`“[m]ouse,” a “selection can be made by ‘[c]licking,’ etc.” (Id. at 0027.)
`
`13. TSE displays information graphically on a screen and thus has a
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`graphical user interface (“GUI”) for displaying market information. One example
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`of the GUI of TSE is the Board/Quotation Screen. TSE supports many display
`
`options and modes for presenting market information on the Board/Quotation
`
`Screen. That is, the system of TSE allows a trader to customize the
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`Board/Quotation Screen based on how they prefer to view the market information
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`while they actively trade. For example, a user can select from 6 types of display
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`forms that divide the screen to display information for multiple (2, 4 or 6) issue
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`names simultaneously. (Id. at 0103-04.) As highlighted below, the
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`Board/Quotation Screen includes a Board Screen portion and a Quotation Portion:
`
`
`
`(Id. at 0103.) The Board x 2, Board x 4, and Board x 6 display forms are depicted
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`below:
`
`
`
`
`
`Board x 2
`
`Board x 4
`
`Board x 6
`
`(Id.)
`
`14. The Board Screen displays 20 prices in the uncompressed “Board x 2”
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`display form. (Id. at 0111.) The Board Screen displays seven prices in the
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`uncompressed “Board x 4” display form and the uncompressed “Board x 6”
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`display form. (Id.) The figures from 0107 and 0108 of TSE depict uncompressed
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`“Board x 2,” “Board x 4,” and “Board x 6” board displays:
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
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`Board x 2
`
`(Id. at 0107-08.)
`
`Board x 4
`
`Board x 6
`
`15. A trader can further select from two price display methods, non-
`
`compressed or compressed method, for each Board Screen. (Id. at 0068.) At times,
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`as shorthand, I may refer to the non-compressed price display method as the non-
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`compressed mode, and to the compressed price display method as the compressed
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`mode. In the non-compressed method, “[r]egardless of the existence of the orders,
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`etc. at the corresponding price, it is a method to display all prices on the board.”
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`(Id.) In the compressed mode, “only the price that satisfies” a set of requirements is
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`displayed. (Id.) The trader sets the price display method by selecting a radio button
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`associated with the Board Screen. (Id. at 0069.) The following figure on 0068 of
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`TSE depicts the “non-compressed” and “compressed” modes:
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
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`
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`16. A larger version of the Board Screen when the divided in 2 form is
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`selected by the trader is reproduced below. (Id. at 0107.) The Board Screen
`
`includes the ability to turn on scrolling through the scroll buttons labeled ⑤. (Id.
`
`at 0110.) A Board Screen “that does not scroll is called a ‘Basic Board Screen.’”
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`(Id. at 0115.) TSE refers to a Board Screen having scrolling enabled as a “Scrolling
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`Screen.” (Id.) For purposes of this proceeding, I refer to the Board Screen as
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`having a Basic Board Screen mode and a Scrolling Screen mode.
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
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`(Id. at 0107.)
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`17. When in Scrolling Screen mode, “the price display positions do not
`
`change automatically.” (Id. at 0115) A user can transition the Basic Board Screen
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`to Scrolling Screen mode by using “the mouse to click the ‘▲’ or ‘▼’ scroll
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`button on the Board Screen.” (Id. at 0116.) When in Scrolling Screen mode the
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`“H” is displayed in “Red.” (Id.) A user can transition the Board Screen from
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`Scrolling Screen mode to Basic Board Screen mode by using “the mouse to click
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`the ‘H’ (Home) button on the Board Screen.” (Id.) The figure on 0116 of TSE
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`(reproduced below) illustrates transitioning from the “Basic Board Screen” to the
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`“Scroll Screen” using the “▲” button, and then back to the “Basic Board Screen”
`
`using the “H” button:
`
`
`
`(Id. at 0116.)
`
`18. TSE’s Board/Quotation Screen functions differently depending on its
`
`display mode. When the Board Screen is in Basic Board Screen mode, the display
`
`automatically updates to maintain a center price “at the center part of the board.”
`
`(Id. at 0115.) By contrast, in Scrolling Screen mode, “the price display positions do
`
`not change automatically.” (Id.) The automatic update of TSE can be either
`
`continuous or as a result of the occurrence of an event.
`
`19. For example, when the display is in Basic Board Screen mode with an
`
`uncompressed price display, the center price is repositioned to the center of the
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`board upon occurrence of an event. If the uncompressed Basic Board Screen is in
`
`“Board x 2” divided form, the event is when the center price exceeds the range of
`
`the “Three Prices Up and Down” from the center of the price axis. (Id. at 0115.) If
`
`the uncompressed Basic Board Screen is in “Board x 4” or “Board x 6” divided
`
`form, the event is when the center price falls exceeds the range of the “One Price
`
`Up and Down” from the center of the price axis. (Id.) When the display is in Basic
`
`Board Screen mode with a compressed price display, the center price is
`
`continuously repositioned to the center of the Board. (Id.)
`
`V. TSE’S PRICE AXIS IS STATIC WHEN THE DISPLAY IS IN THE
`SCROLLING SCREEN MODE WITH A COMPRESSED PRICE
`DISPLAY.
`20. The ’055 patent claims recite the term “static price axis.” I understand
`
`that the Board has construed this term to mean “a price column or reference line
`
`where prices do not normally change positions unless a re-centering or re-
`
`positioning command is received.” (Decision, pp. 8-10.) I apply this definition in
`
`this declaration. And applying this definition, a POSITA would have understood
`
`that TSE’s price axis is static in the Scrolling Screen mode with a compressed
`
`price display.
`
`21. As explained above, the figure on page 0068 of TSE, which I
`
`annotated and reproduced below, illustrates TSE’s non-compressed price display
`
`(on the left-hand side) and TSE’s compressed price display (on the right-hand
`
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`side). As shown below, TSE’s compressed price display can be transitioned from a
`
`Basic Board Screen mode to a Scrolling Screen mode selects the “▲” button or
`
`“▼” button, which I circled in red. TSE states that “in a ‘Scrolling Screen,’ the
`
`price display positions do not change automatically.” (TSE, p. 0115.) This teaching
`
`would have informed a POSITA that the TSE’s price axis does not normally
`
`change positions unless a re-centering or re-positioning command is received (i.e.,
`
`is static) when the display is in the Scrolling Screen mode with a compressed price
`
`display. In this scenario, a re-centering or re-positioning command may be
`
`received when the trader selects the home button (“H”) to transition the display to
`
`the Basic Board Screen mode “with the board display center price at the center.”
`
`(Id. at 0110, 0116.)
`
`(Id. at 0068.)
`
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`VI. TRANSITIONING TSE’S DISPLAY FROM A NON-COMPRESSED,
`BOARD X 4 TO A NON-COMPRESSED, BOARD X 2 MODE.
`22. As explained above, I understand that TT argues that blank
`
`(unpopulated) locations along the price axis in TSE’s compressed mode are “price
`
`levels.” (POR, pp. 60-64.) I also understand that, applying this interpretation, TT
`
`argues that transitioning TSE’s display from a compressed price display method to
`
`a non-compressed price display method fails to teach or suggest the limitation
`
`“adjusting the first plurality price levels among a range of price levels to an
`
`adjusted plurality of price levels including the first plurality of price levels,” as
`
`recited in claims 1 and 17, because (according to TT) this transition does not add
`
`price levels to the display. (Id.) I disagree with TT’s interpretation of price levels,
`
`as discussed above.
`
`23. Regardless, transitioning TSE’s display from a non-compressed,
`
`“Board x 4” display to a non-compressed, “Board x 2” display adds price levels,
`
`even under TT’s interpretation of the term “price levels.” As explained above,
`
`TSE’s “Board x 4” display displays seven prices, i.e., seven price levels. (TSE, pp.
`
`0108, 0111.) TSE’s “Board x 2” display displays 20 prices, i.e., 20 price levels.
`
`(Id. at 0107, 0111.) TSE teaches that a trader can change the split screen mode
`
`from the “‘Split Screen’ Menu Item.” (Id. at 0105-06.) A POSITA would have
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`understood that transitioning or “adjusting” from a “Board x 4” display to a
`
`“Board x 2” display would add 13 price levels.
`
`
`
`TSE’s “Board x 4” display”
`7 price levels
`re-position when the center price
`exceeds ±1 from center
`
`(Id. at 0107-08.)
`
`
`
`TSE’s “Board x 2” display
`20 price levels
`re-position when the center price
`exceeds ±3 from center
`
`24. A POSITA would also have understood that transitioning TSE’s
`
`display from a non-compressed, “Board x 4” display to a non-compressed, “Board
`
`x 2” display would change the number of locations in the bid and ask display
`
`regions, which are shown in columns 12 and 13 of TSE’s board screen, (Id. at
`
`0107, 0112.) That is, a POSITA would have understood this transition to add
`
`locations in the bid and ask display regions that correspond to the additional price
`
`levels.
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`CBM2016-00009
`U.S. Pat. No. 7,685,055
`25. A POSITA would also have understood that transitioning TSE’s
`
`display from a non-compressed, “Board x 4” display to a non-compressed, “Board
`
`x 2” display would change the position at which the recentring command is
`
`triggered. As discussed above, TSE teaches that if the non-compressed Basic
`
`Board Screen is in “Board x 2” divided form, re-positioning is triggered when the
`
`center price exceeds the range of the “Three Prices Up and Down” from the center
`
`of the price axis. (Id. at 0115.) If the non-compressed Basic Board Screen is in
`
`“Board x 4” divided form, re-positioning is triggered when the center price falls
`
`exceeds the range of the “One Price Up and Down” from the center of the price
`
`axis. (Id.)
`
`VII. CONCLUSION
`26. The findings and opinions set forth in this declaration are based on my
`
`work and examinations to date. I may continue my examinations. I may also
`
`receive additional documentation and other factual evidence over the course of this
`
`litigation that will allow me to supplement and/or refine my opinions. I reserve the
`
`right to add to, alter, or delete my opinions and my declaration upon discovery of
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`any additional information. I reserve the right to make such changes as may be
`
`deemed necessary.
`
`27.
`
`In signing this declaration, I recognize that the declaration will be
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`filed as evidence in a contested case before the Patent Trial and Appeal Board of
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`CBM2016—00009
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`U.S. Pat. No. 7,685,055
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`the United States Patent and Trademark Office. I also recognize that I may be
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`subject to cross—examination in the case and that cross—examination will take place
`
`within the United States. If cross-examination is required of me, I will appear for
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`cross-examination within the United States during the time allotted for cross-
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`examination.
`
`28.
`
`I hereby declare that all statements made herein of my own
`
`knowledge are true and that all statements made on information and belief are
`
`believed t_o be true; and further that these statements were made with the
`
`knowledge that willful false statements and the like so made are punishable by fine
`
`or imprisonment, or both, under Section 1001 of Title 18 of the United States
`
`Code.
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`Executed this 4th day of November 2016 in New York, New York.
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`
`
`-17-
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