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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC., IBG LLC, AND
`INTERACTIVE BROKERS LLC
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`Petitioners,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`
`
`
`U.S. Patent No. 7,904,374
`
`
`
`DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITION FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT NO. 7,904,374
`
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`1
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`TS 1011
`
`
`
`U.S. Patent No. 7,904,374
`
`I, Kendyl A. Román, declare as follows:
`
`1.
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`I have been engaged by Fish & Richardson P.C. on behalf of
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`TradeStation Group, Inc., TradeStation Securities, Inc., IBG LLC, and Interactive
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`Brokers LLC (“Petitioners”) for the above-captioned covered business method
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`review proceeding. I understand that this proceeding involves United States Patent
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`7,904,374 entitled “Click based trading with intuitive grid display of market depth,”
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`by Gary Allan Kemp, II, et al., filed October 25, 2006 and issued March 8, 2011
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`(the “’374 Patent”). I understand that the ’374 Patent is currently assigned to
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`Trading Technologies International, Inc. (“TT”).
`
`2.
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`I understand the ’374 Patent claims benefit from U.S. provisional
`
`application 60/186,322. For purposes of the covered business method review, I
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`assume the earliest possible priority date of the ’374 Patent is the March 2, 2000
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`filing date of U.S. provisional application 60/186,322.
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`3. I have reviewed and am familiar with the specification of the ’374 Patent. I
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`understand that the ’374 Patent has been provided as TS-1001. I will cite to
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`the specification using the following format (’374 Patent, 1:1-10). This
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`example citation points to the ’374 Patent specification at column 1, lines 1-
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`10.
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`4. I have reviewed and am familiar with the file history of the ’374 Patent. I
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`understand that the file history has been provided as TS-1002.
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`2
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`
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`5.
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`I have also reviewed and am familiar with the following prior art used
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`in the Petition for Covered Business Method Review of the ’374 Patent:
`
`U.S. Patent No. 7,904,374
`
` U.S. Patent No. 5,297,031 to Gutterman, et al. (“Gutterman”). I
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`understand that Gutterman has been provided as TS-1004.
`
` WO 90/11571 to Belden, et al. (“Belden”). I understand that Belden
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`has been provided as TS-1005.
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` A certified translation of “System for Buying and Selling Futures and
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`Options Transaction Terminal Operational Guidelines” (“TSE”) has
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`been provided as TS-1003. I understand that the original Japanese
`
`language document was provided as TS-1010 and the certificate of
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`translation provided as TS-1006.
`
` U.S. Patent No. 5,375,055 to Togher et al. (“Togher”). I understand
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`that Togher has been provided as TS-1021.
`
`6.
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`A complete listing of additional materials considered and relied upon
`
`in preparation of my declaration is provided as TS-1007. I have relied on these
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`materials to varying degrees. Citations to these materials that appear below are
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`meant to be exemplary but not exhaustive.
`
`7.
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`The ’374 Patent describes electronic trading, using a graphical user
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`interface (“GUI”) “for displaying the market depth of a commodity” and placing
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`orders on an electronic exchange. (’374 Patent, 3:11-20.) I am familiar with the
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`3
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`
`
`U.S. Patent No. 7,904,374
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`technology described in the ’374 Patent as of the earliest possible priority date of
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`the ’374 Patent (March 2, 2000).
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`8.
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`I have been asked to provide my technical review, analysis, insights
`
`and opinions regarding the ’374 Patent and the above-noted references that form the
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`basis for the grounds of rejection set forth in the petition for Covered Business
`
`Method Review of the ’374 Patent.
`
`I.
`
`9.
`
`QUALIFICATIONS
`
`See my Curriculum Vitae, provided as TS-1008, for a listing of my
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`qualifications. This includes a list of publications for the past 10 years or more.
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`10. My expertise qualifies me to do the type of analysis required in this
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`case. Of particular relevance, I have been involved in the design, implementation,
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`testing, and analysis of computer software, firmware, and hardware for over thirty
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`years, including software architecture, graphical user interfaces, trading systems,
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`and other networked, data-driven, client-server systems. My work has included
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`analysis of trading systems including source code and user interfaces. In addition, I
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`have practical experience in the design and programming of a variety of computer
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`systems ranging from handheld devices, to laptops and desktop computers, to large
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`multi-layer networked database systems.
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`11. As a freshman at Brigham Young University (“BYU”) in 1976, I
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`started writing programs for IBM computers.
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`4
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`U.S. Patent No. 7,904,374
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`12.
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`In 1980, I worked with Apple II computers and wrote computer
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`programs having graphic user interfaces.
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`13.
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`In the late 1960’s and 1970’s the University of Utah was known for its
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`pioneering work in computer graphics (and the Internet1). At BYU, I got involved
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`with computer graphics and wrote graphics programs. Many of my BYU
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`professors had been at the University of Utah during its computer science
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`pioneering years. One of my BYU professors, Alan Ashton, and a fellow computer
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`science student, Bruce Bastian, worked together on word processing software
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`with graphical display. Later, Professor Ashton and Bruce Bastian founded
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`WordPerfect.
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`14.
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`I graduated with High Honors from Brigham Young University where
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`I received a Bachelor of Science degree in Computer Science. My formal studies
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`included computer architecture, computer programming, programming languages,
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`algorithms, operating systems, database systems, and digital logic design.
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`15.
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`In 1981, I worked at International Business Machines (“IBM”) in San
`
`Jose, CA. At IBM, I had a graphics display on my desk and wrote programs that
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`displayed custom graphics. During my employment at IBM, the IBM PC was
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`released. The IBM PC also supported graphical user interfaces.
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`
`1 In 1969, University of Utah was one of the first four nodes on the Internet.
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`5
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`U.S. Patent No. 7,904,374
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`In 1982, at Dialogic, I improved the performance of the Computer
`16.
`Aided Design (“CAD”) software.2 The CAD software drew polygons on the
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`graphical display and placed them along value axes.
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`17.
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`In this timeframe, I had experience with Tandy computers, including
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`the TRS-80, and with Commodore VIC 20 computers, which supported graphical
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`user interfaces.
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`18.
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`In 1984, I starting writing programs for the Apple Lisa and Macintosh,
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`which had a sophisticated graphical user interface built into the firmware and
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`operating system. Both Lisa and Macintosh used a one-button mouse as a pointing
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`device. The user controls various operations by clicking, double clicking, or
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`dragging the mouse. Such operations are affected by releasing the mouse button.
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`For example, a mouse click is defined by the release of a mouse button within a set
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`number of pixels from where it was depressed. A double click is defined by the
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`second release when clicking twice. Likewise, a click and drag is depressing the
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`button to select the item, and releasing the mouse button to release it at the desired
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`location or value.
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`19.
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`I developed a Macintosh program that drew graphical icons (or
`
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`2 The software, the Lucas Drawing System, had been developed by Lucas Films to
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`aid in the production Star Wars.
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`6
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`U.S. Patent No. 7,904,374
`polygons) on the display.3 The icons changed size base on a numerical value. The
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`user interface allowed for a window to be displayed that showed the numerical
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`value as text.
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`20. Next in 1986, I started consulting at Hewlett Packard (“HP”) where I
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`became familiar with standard printer description languages and graphic command
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`languages. During this time, I used X-Windows.
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`21.
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`Later, in 1988 through 1990, at Tandem (later Compaq, now HP), I
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`worked with CAD systems and hardware simulators, which used graphical user
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`interfaces and included pop-up windows that provided textual representations of
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`values related to graphical displays.
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`22.
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`In 1990, I authored portions of the Macintosh Programming
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`Fundamentals: Self-paced Training course interactive CD-ROM and lab book.
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`23.
`
`I returned to HP in 1991 where I worked with diagnostic tools,
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`including exercises and verifiers. During this period, I was involved in testing
`
`various graphics adapters and display devices throughout the HP product line. I
`
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`3 An article regarding the software was published in MacWorld Magazine around
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`February 1987. A review was published in 1990 by the Boston Computer Society,
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`which also showed various features of the user interface. See
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`http://www.wolfpup.org/misc/MacBaby_Math_review.pdf.
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`7
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`U.S. Patent No. 7,904,374
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`worked with an X-Windows-based diagnostic tool that displayed an icon for every
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`component of the system. The number, type, and locations of the icons were based
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`on the components actually found in the system. The icons were dynamically
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`changed to represent the status of the testing.
`
`24.
`
`In 1991 and 1992, at Slate and Apple, I worked with the pen-based
`
`tablets and handheld computers including, the NCR tablet and Newton PDA.
`
`25.
`
`In 1993 and 1994, I taught classes for Mentor Graphics to hardware
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`designers regarding hardware simulation and design verification software. Mentor
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`Graphics’ CAD system had the features discussed above regarding CAD software.
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`In addition, I taught users how to customize CAD software to perform complex
`
`custom operations based on a single action with a user input device.
`
`26.
`
`In 1993 and 1994, at Apple I worked with the Apple Media Tool team
`
`and the SK8 team, which included working with state of the art graphic display
`
`systems.
`
`27.
`
`In the early 1990’s, before the World Wide Web became
`
`commercialized, multimedia technology was becoming state of the art. During this
`
`time, interactive CD-ROMs, early commercial Internet sites, high-resolution color
`
`animation, and digital video were state of the art technologies. While at The Carl
`
`Group, I formed the Multimedia Lab. Projects included porting a program to
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`automate layout of ball grid assemblies (“BGA”), updating automatic test
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`8
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`U.S. Patent No. 7,904,374
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`equipment software to use state of the art graphical user interfaces, developing
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`graphic animations, developing multimedia authoring tools and various interactive
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`CD-ROM titles. My work with multimedia authoring tools included developing
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`low-level graphics software for both the Macintosh and IBM PC platforms.
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`28. We sold our multimedia authoring tools to the public and I developed
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`an interactive user interface, which allowed users to enter and confirm information
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`including prices and quantities, which resulted in an order being sent to our server.
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`29. Also in the mid-1990ʼs, we developed a database driven, on-demand
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`catalog publishing system for Sun, which allowed users to configure and order
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`products via a graphical user interface. At Sun, I used workstations using Open
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`Look, which was a graphical user interface based on pioneering work at Xerox
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`PARC, and which was competitive with X Windows, which was being used by
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`Hewlett Packard.
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`30.
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`In the mid-1990’s, I developed a medical communications device that
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`could transmit medical quality video images over the Internet in real time. This
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`work included developing various graphical user interfaces. I have patents on some
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`of this technology as discussed below.
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`31. During this time, I was familiar with the graphical user interfaces in
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`various medical devices. These included EKG, ultrasound, and medical records
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`systems.
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`9
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`U.S. Patent No. 7,904,374
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`32.
`
`In many of these professional assignments, I analyzed the architecture,
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`function, and operation of software with graphical user interfaces.
`
`33.
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`Prior to being retained in this matter, I have acquired and performed
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`forensic analysis of several computer systems. In particular, in 1999-2002, I
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`performed the technical analysis of both copyright and trade secrets in the
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`Tradescape.com, Inc., et al. v. Shivaram, et al. cases. In those cases, I reviewed the
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`source code and operations of the market-leading day trading systems and illicit
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`copies. I also surveyed the current state of the art to address the trade secrets versus
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`what was publicly known. Tradescape was later acquired by E*Trade.
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`34. As part of my review of the operations in the Tradescape engagement,
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`I personally observed day traders conducting tens of thousands of dollars of
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`transactions within seconds. For example, I observed one trader buy 10,000 shares
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`of stock and then immediately buy another 10,000 shares using the same default
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`quantity (i.e., 10,000) within two seconds. Then, this same trader sold all 20,000
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`shares at a substantial profit less than a minute later.
`
`35.
`
`I worked on the Datamize v. Fidelity, Scottrade, Interactive Brokers
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`Group, et al. patent case, which involved user interfaces used by the defendants in
`
`their trading software.
`
`36.
`
`I performed a code review for a patent case, Chicago Board Options
`
`Exchange v. International Securities Exchange, which involved security exchange
`
`10
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`U.S. Patent No. 7,904,374
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`trading software.
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`37.
`
`Further, I have extensive experience in designing, developing and
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`analyzing database, networked systems and their user interfaces. As a result, I have
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`had access to the type of components and information at issue in this case and have
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`contemporaneous knowledge of what was publicly known.
`
`38. My Curriculum Vitae identifies over 70 issued patents and over 70
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`published patent applications for which I am listed as an inventor or assignee.
`
`Several of my inventions include graphical user interfaces and networked client-
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`server systems, these include:
`
` U.S. 8,590,777, Space equipment recognition and control using
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`handheld devices;
`
` U.S. 8,500,563, Display, device, method, and computer program for
`
`indicating a clear shot;
`
` U.S. 8,282,493, Display, device, method, and computer program for
`
`indicating a clear shot;
`
` U.S. 7,698,653, Graphical user interface including zoom control box
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`representing image and magnification of displayed image;
`
` U.S. 7,424,473, System and method for asset tracking with
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`organization-property-individual model;
`
` U.S. 7,257,158, System for transmitting video images over a computer
`
`11
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`U.S. Patent No. 7,904,374
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`network to a remote receiver;
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` U.S. 7,191,462, System for transmitting video images over a computer
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`network to a remote receiver; and
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` U.S. 6,803,931, Graphical user interface including zoom control box
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`representing image and magnification of displayed image.
`
`39.
`
`I have reviewed and analyzed numerous patents and prior art systems
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`through my litigation support work, including patents and prior art related to the
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`architecture and operation of computer systems including graphics. I have taken a
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`number of courses offered by the U.S. Patent and Trademark Office and the
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`Sunnyvale Center for Innovation, Inventions, and Ideas (“Sc[i]3”).
`
`40. Both Federal and State Courts have recognized me as an expert in
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`computer software including trading systems and graphical user interfaces,
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`computer architecture, computer hardware, database systems, networks, and
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`computer forensic science.
`
`41.
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`In addition, I recently served as a Special Master in a Federal District
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`Court in Paycom Payroll, LLC v. Richison and Period Financial, which included
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`financial systems with graphical user interfaces. I have served as a court-appointed
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`expert in San Jose, CA, in Aspect Communications Corporation v. eConvergent,
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`Inc. et al., which included financial systems with graphical user interfaces, and in
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`Ribeiro v. Weichselbaumer, which included financial and graphical analysis.
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`12
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`U.S. Patent No. 7,904,374
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` Testifying Engagements
`42. Cases in which I have testified as an expert witness at trial or by
`
`deposition during the previous four years are identified as:
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` Davis and Carlos v. HireVue, Inc., No. 140900780 (Utah State 3rd
`District Court, Salt Lake County);
`
` Embry v. Acer America Corp., No. 5:09-cv-01808 (N.D. Cal.);
`
` Futurelogic, Inc. v. Nanoptix, Inc., 2:10-cv-07678 (C.D. Cal.);
`
` Hickok, Inc. v. SysTech International, LLC, No. 1:7-cv-03565 (N.D.
`Ohio);
`
` Miller v. Fuhu, Inc., No. 2:14-cv-6119-CAS(ASx) (C.D. Cal.);
`
` MyKey Technology Inc. Patent Litigation, No. 2:13-ml-02461 (C.D.
`
`Cal.);
`
` Parallel Networks, LLC v. A10 Networks, Inc., No. 1:13-cv-1943 (D.
`
`Del.);
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` Parallel Networks, LLC v. F5 Networks, Inc., No. 1:13-cv-2001(D.
`
`Del.);
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` Reporting Technologies, Inc. v. Emma, Inc., No. 1:11-cv-01203 (E.D.
`
`Va.);
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` Sanford L.P. v. Esselte AB, No. 1:14-cv-07616 (S.D.N.Y.);
`
`13
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`U.S. Patent No. 7,904,374
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` SAS Institute, Inc. v. World Programming Limited, No. 5:10-CV-25-
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`FL (E.D.N.C.);
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` T. Rowe Price Investment Services, Inc. v. Secure Axcess, LLC, No
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`CBM2015-00027 (U.S. Patent Trial and Appeal Board).
`
` TD Ameritrade v. Trading Techs. Int’l, Inc., Nos. CBM2014-00131,
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`133, 135, and 137 (U.S. Patent Trial and Appeal Board);
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` Wellogix, Inc. v. Accenture LLP, 3:08-cv-119 (S.D. Tex.); and
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` Wellogix, Inc. v. BP America, Inc., No. 4:09-cv-1511 (S.D. Tex.).
`
`43. Also, the following is the case identification of the cases where I have
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`provided recent reports or declarations but have not testified:
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` GoPro, Inc. v. Contour, LLC, Nos. IPR2015-01078 and IPR2015-
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`01080 (U.S. Patent Trial and Appeal Board);
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` IBG LLC v. Trading Techs. Int’l, Inc., CBM2015-00179, CBM2015-
`00181, CBM2015-00182, and CBM2016-00009 (U.S. Patent Trial
`and Appeal Board);
`
` Innersvingen AS v. Sports Hoop, Inc., No. 2:12-cv-05257 (C.D. Cal.);
`
` Lilith Games (Shanghai) Co. Ltd. v. uCool, Inc., No. 4:15-cv-01267
`(N.D. Cal.);
`
` Malanche v. Eisenhower Medical Center, No. INC1108128 (Superior
`Court of California, Riverside County);
`
`14
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`U.S. Patent No. 7,904,374
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` Paycom Payroll, LLC v. Richison, No. 5:09-CV-00488-W (W.D.
`Okla.); and
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` Twin City Fan Companies, Ltd. v. FPT Software, No. 0:12-cv-1357
`(D. Minn.).
`
`44.
`
`Some additional prior cases related to software interfaces, graphics,
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`and patent analysis, include: Konrad v. General Motors, et al.; ACTV, Inc. and
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`HyperTV Networks, Inc. v. The Walt Disney Co., ABC, Inc. and ESPN, Inc.; and
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`Collaboration Properties v. Polycom.
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`45.
`
`In Konrad v. General Motors, I analyzed the source code and
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`operation of data-driven web sites for many of the largest companies in America.
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`The graphical user interfaces displayed current quantity and pricing, and allowed
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`order placement and confirmation for airline seats, rental cars, and hotel rooms.
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`Many of these systems allowed for available commodities to be displayed in order
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`of price or other values.
`
`46.
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`In ACTV v. Disney, I analyzed the Disney (ABC and ESPN)
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`interactive television system that included an interactive graphical user interface.
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`47.
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`In Collaboration Properties v. Polycom, I analyzed video
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`conferencing systems including telephony and graphics output systems and
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`standards.
`
`48. My Curriculum Vitae contains further details on my education,
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`15
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`U.S. Patent No. 7,904,374
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`experience, publications, and other qualifications to render an expert opinion. My
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`work on this case is being billed at a rate of $525.00 per hour, with reimbursement
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`for actual expenses. My compensation is not contingent upon the outcome of this
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`covered business method review or the litigation involving the ’374 Patent.
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`II. MY UNDERSTANDING OF CLAIM CONSTRUCTION
`
`49.
`
`I understand that, during a covered business method review, claims are
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`to be given their broadest reasonable construction in light of the specification as
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`would be read by a person of ordinary skill in the relevant art.
`
`50.
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`I am not a lawyer and will not provide any legal opinions. Although I
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`am not a lawyer, I have been advised certain legal standards are to be applied by
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`technical experts in forming opinions regarding meaning and validity of patent
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`claims.
`
`51. As part of this inquiry, I have been asked to consider the level of
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`ordinary skill in the field that someone would have had at the time the claimed
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`invention was made. In deciding the level of ordinary skill, I considered the
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`following:
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`
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`
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`the levels of education and experience of persons working in the field;
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`the types of problems encountered in the field; and
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`the sophistication of the technology.
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`III. LEVEL OF ORDINARY SKILL IN THE ART
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`16
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`U.S. Patent No. 7,904,374
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`52. A person of ordinary skill in the art at the time of the alleged invention
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`(“POSITA”) would have had the equivalent of a Bachelor’s degree or higher in
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`computer science or computer engineering and at least 2 years working experience
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`designing and/or programming graphical user interfaces, and direct or indirect
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`experience with trading or related systems. Experience could take the place of some
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`formal training, as domain knowledge and user interface design skills may be
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`learned on the job. This description is approximate, and a higher level of education
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`or skill might make up for less education and vice versa.
`
`IV. BACKGROUND OF THE TECHNOLOGIES DISCLOSED IN THE
`‘374 PATENT
` Computer Hardware, Software, and Firmware
`53. Originally, computers were composed only of physical circuits, known
`as hardware,4 that were programmed by physically configuring wires (like a
`
`telephone switch board operator). Computer programs (a series of computer
`instructions) stored in memory are known as software,5 because they can be
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`4 Hardware at the time consisted of the tangible components of a computing system,
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`such as vacuum tubes, wires, resistors, capacitors, circuit boards and other discrete
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`components.
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`5 Software is a “generic term for those components of a computer system that are
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`17
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`U.S. Patent No. 7,904,374
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`modified much more easily than hardware. In the late 1970s, personal computers
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`(PCs) became commercial products (such as the Apple II in 1977). In some PCs, a
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`bootstrap loader and other basic input and output programs were permanently
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`stored in hardware chips, known as read-only-memories (“ROM”). These
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`programs recorded indelibly in ROM were no longer “soft” enough to be modified,
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`but could be changed by replacing one socketed ROM with another ROM
`
`containing another version of the program. Because they are intimately bonded
`
`with the hardware, these programs are called firmware.6
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`Input/Output Adapters and User Input Devices
`
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`In addition to the CPU and main memory, a computer usually has
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`54.
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`various input and output (“I/O”) devices. I/O devices include disks, tapes,
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`keyboards and other input devices, displays, printers, and communications devices.
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`Disks and tapes are also known as memory or storage, and (as discussed above) are
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`intangible rather than physical. It is most commonly used to refer to the programs
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`executed by a computer system as distinct from the physical hardware of that
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`computer system, and to encompass both symbolic and executable forms for such
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`programs.” (Oxford Dictionary “software,” TS-1035.)
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`6 Generally, firmware refers to CPU instructions stored in a programmable
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`ROM.
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`18
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`U.S. Patent No. 7,904,374
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`distinguished from main memory by the term “secondary memory.” Other input
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`devices include mice, pens, tablets, touch pads, touch screens, and cameras.
`
` Bits, Bitmaps, Pixmaps, and Graphic Images
`55. A binary digit (“bit”) can have a value of zero (0) or one (1).
`
`Computer digital logic uses zero to represent “false” and one to represent “true,”
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`thus 0 is false and 1 is true.
`
`56. A bit map originally was a data structure having one bit for each
`pixel.7 This is now referred to as a Black and White (“B&W”) bitmap, or a two
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`color bitmap. A one would turn on the electron beam for that pixel and a zero
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`would turn off the electron beam. A bitmap could be created to define a character.
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`For example, in CGA a character was defined as an 8x8 bitmap.
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`57.
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`The same concept was applied to create a color bitmap, or pixel map
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`(“pixmap”) where more than one bit represents the color for each pixel. Like B&W
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`7 In 1984, when the Apple Macintosh was released, it had a black and white screen
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`and its screen buffer was a true bitmap, named screenBits, in a special location in
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`main memory. “The Macintosh screen itself is one large visible bit image. The
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`upper 21,888 bytes of memory are displayed as a matrix of 175,104 pixels on the
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`screen, each bit corresponding to one pixel . . . The screen is 342 pixels tall and 512
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`pixels wide” (Inside Macintosh, Promotional Edition, TS-1036, p. 12.)
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`U.S. Patent No. 7,904,374
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`bitmaps, a color bitmap is a consecutive array of pixel data, where the more than
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`one bit makes up the array elements. In some contexts, the term bitmap is used to
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`refer to pixmaps, as well as B&W bitmaps.
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`58. A bitmap can also be used to store a graphic image as an array of color
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`values for each point in the image. For example, the Macintosh used bitmaps for
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`icons in its GUI. Further, Windows and OS/2 have a bitmap file format (“.BMP”).
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`JPEG, TIFF, GIF, and PNG also store bitmaps in a compressed format.
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`59. Graphic images can also be drawn (or rendered) using graphic
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`commands. Rectangles, circles, and other polygons can be drawn having different
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`sizes and colors.
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`V. OVERVIEW OF THE ’374 PATENT
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`60.
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`The ’374 Patent is directed to a “method and system for reducing the
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`time it takes for a trader to place a trade when electronically trading on an
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`exchange, thus increasing the likelihood that the trader will have orders filled at
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`desirable prices and quantities.” (’374 Patent, Abstract.) The ’374 Patent refers to a
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`trading system called “Mercury” that allegedly “ensure[d] fast and accurate
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`execution of trades by displaying market depth on a vertical or horizontal plane,
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`which fluctuates logically up or down, left or right across the plane as the market
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`prices fluctuates. This allows the trader to trade quickly and efficiently.” (Id.)
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`61.
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`The ’374 Patent specification further stresses that “the present
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`U.S. Patent No. 7,904,374
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`invention is directed to a graphical user interface for displaying the market depth of
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`a commodity traded in a market, including a dynamic display for a plurality of bids
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`and for a plurality of asks in the market for the commodity and a static display of
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`prices corresponding to the plurality of bids and asks.” (Id. at 3:11-16.) “Also
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`described herein is a method and system for placing trade orders using such
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`displays.” (Id. at 3:17-20.)
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`62. A bid is an order to buy a financial instrument or security, such as a
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`stock, a stock option, or a future, at a specific price. An ask, sometimes called an
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`offer, is an order to sell a financial instrument at a specific price.
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`63.
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`For example, FIG. 3 of the ’374 Patent (reproduced below) graphically
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`shows bids and asks. The “Mercury display is a static vertical column of prices
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`with the bid and ask quantities displayed in vertical columns to the side of the price
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`column and aligned with the corresponding bid and ask prices.” (Id. at 7:17-21.)
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`“Mercury also provides an order entry system, market grid, fill window and
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`summary of market orders in one simple window.” (Id. at 7:6-8.)
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`U.S. Patent No. 7,904,374
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`(‘374 Patent, FIG. 3.)
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`
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`64. According to the ‘374 Patent, a so-called “problem” with prior art
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`U.S. Patent No. 7,904,374
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`trading GUIs was that the market price could change before a trader entered a
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`desired order, causing the trader to “miss his price.” (Id. at 2:54-60.) This alleged
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`problem of missing a trade price is not technical in nature. Nor is the ’374 Patent’s
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`solution to the alleged problem, i.e., plotting the bids and asks along a price axis. If
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`anything, the ’374 Patent’s solution is an aesthetic change to the trading interface
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`shown in FIG. 2 of the ’374 Patent that merely rearranges the way that the market
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`data is displayed—albeit into a well-known display configuration. (See TSE,
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`p.0107, FIGS. 4-5; Gutterman, FIG. 2b). Although the aid of a computer
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`programmer would be required to actually implement such an aesthetic change, the
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`underlying idea of making the change to the trading interface to arrive at the GUI
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`disclosed and claimed in the ’374 Patent is not technological in nature. Rather, it is
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`merely a visual design change that could have been conceived of by a person
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`having no technological background whatsoever.
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`65.
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`The GUI disclosed in the ’374 Patent is implemented using standard,
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`conventional technology of the time such as general purpose computers, terminals,
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`servers, workstations, routers, display screens, and user input devices such as a
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`mouse. No specialized computer or other unconventional electronics or hardware
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`is used. And this conventional technology is being used only for its most basic
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`functions such as performing repetitive calculations, displaying information on
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`screens, accepting user inputs, and the like. In no way is the purported invention
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`U.S. Patent No. 7,904,374
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`of the ’374 Patent “rooted in technology,” nor does it improve the functioning of
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`the generic, conventional computer technology on which it is implemented.
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`Instead, the specification discusses how a trader can use a computer to facilitate
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`faster trading.
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`66. Claim 1 of the ’374 Patent is representative and is reproduced below:
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`1. [P] A method for facilitating trade order entry, the method
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`comprising:
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`[A] receiving, by a computing device, market data for a commodity,
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`the market data comprising a current highest bid price and a current
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`lowest ask price available for the commodity;
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`[B] identifying, by the computing device, a plurality of sequential price
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`levels for the commodity based on the market data, where the plurality
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`of sequential price levels includes the current highest bid price and the
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`current lowest ask price;
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`[C] displaying, by the computing device, a plurality of graphical
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`locations aligned along an axis, where each graphical location is
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`configured to be selected by a single action of a user input device to
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`send a trade order to the electronic exchange, where a price of the trade
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`order is based on the selected graphical location;
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`[D] mapping, by the computing device, the plurality of sequential price
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`U.S. Patent No. 7,904,374
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`levels to the plurality of graphical locations, where each graphical
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`location corresponds to one of the plurality of sequential price levels,
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`where each price level corresponds to at least one of the plurality of
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`graphical locations, and where mapping of the plurality of sequential
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`price levels does not change at a time when at least one of the current
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`highest bid price and the current lowest ask price changes; and
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`[E] setting a price and sending the trade order to the electronic
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`exchange in response to receiving by the computing device commands
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`based on user actions consisting of: (1) placing a cursor associated with
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`the user input device over a desired graphical location of the plurality
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`of graphical locations and (2) selecting the desired graphical location
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`through a single action of the user input device.
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`67. A person lacking any technological background could have conceived of
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`the idea of rearranging information on a display. Further, any generic computer could
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`be programmed to perform claim 1 using generic programming languages. It would then
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`perform the repeated operations of receiving data, calculating where to display each data
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`element, receiving user input, and sending orders to the electronic exchange, i.e., the
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`basic functions of a computer. Aside from the requirements to use a “computing device”
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`and other generic computer components such as a “user input device”, claim 1 could be
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`performed in the human mind or using a pen and paper. I