UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., and TRADESTATION SECURITIES, INC.,
`
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner
`
`
`
`
`
`
`Case CBM2016-00054
`U.S. Patent No. 7,693,768 B1
`
`
`
`
`
`DECLARATION OF CHRISTOPHER H. THOMAS
`
`
`
`
`
`Page 1 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`TABLE OF CONTENTS
`
`“setting a plurality of parameters for a trade order
`relating to the commodity and sending the trade order to
`the electronic exchange in response to a selection of a
`particular location of the order entry region by a single
`
`INTRODUCTION ........................................................................................... 1
`I.
`QUALIFICATIONS & BACKGROUND ...................................................... 4
`II.
`INFORMATION CONSIDERED ................................................................. 10
`III.
`IV. PERSON OF ORDINARY SKILL IN THE ART ........................................ 14
`V.
`CLAIM CONSTRUCTION .......................................................................... 17
`A.
`“order entry region”............................................................................. 17
`B.
`action of a user input device” .............................................................. 18
`C.
`along the price axis” ............................................................................ 19
`“single action” ..................................................................................... 20
`D.
`E.
`“centering command” .......................................................................... 20
`F.
`recorded thereon” ................................................................................ 20
`VI. BACKGROUND OF THE INDUSTRY ....................................................... 21
`VII. CONVENTIONAL GRAPHICAL USER INTERFACE
`TOOLS (“GUI TOOLS”) .............................................................................. 34
`VIII. THE UTILITY AND ADVANTAGES OF THE PATENTED
`INVENTION ................................................................................................. 48
`IX. THE CLAIMED INVENTION IS NOT OBVIOUS ..................................134
`X.
`THE CLAIMED INVENTION IS TECHNICAL .......................................152
`XI. CONCLUDING STATEMENTS ................................................................169
`
`“entered order indicator in association with a price level
`
`“a computer readable medium having program code
`
`i
`
`Page 2 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`I.
`
`INTRODUCTION
`
`I, Christopher H. Thomas, declare as follows:
`
`1.
`
`I am over 18 years of age. I have personal knowledge of the facts
`
`stated in this declaration and could testify competently to them if asked to do so.
`
`2.
`
`I have been retained on behalf of Patent Owner Trading Technologies
`
`International, Inc. (“Patent Owner”) to provide expert opinions in connection with
`
`Case CBM2016-00054, regarding United States Patent No. 7,693,768 (“the ’768
`
`patent”). I have also been retained on behalf of Patent Owner to provide expert
`
`opinions in connection with other CBM proceedings and litigations involving the
`
`‘768 patent and other patents owned the Patent Owner.
`
`3.
`
`I understand that a Petition was filed on April 12, 2016 seeking
`
`covered business method (“CBM”) review of claims 1 through 23 of the ’768
`
`patent, and the petition was subsequently assigned Case No. CBM2016-00054. I
`
`understand that in the Petition, Petitioner alleged that the claims are unpatentable
`
`under 35 U.S.C. § 101 and also provided various grounds under 35 U.S.C. § 103. I
`
`understand that the Petitioner did not allege any grounds of anticipation. The PTO
`
`instituted CBM review, by decision dated October 18, 2016, for all claims of
`
`the ’768 patent under § 101 and for all claims of the ’768 patent under § 103.
`
`4.
`
`I have been asked to provide my opinion relating to an inquiry into the
`
`patentability of claims 1 through 23 of the ’768 patent under 35 U.S.C. § 103. I
`
`1
`
`Page 3 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`have also been asked to address the technological nature of the claims, as well as
`
`the inquiry into whether the invention solves a technical problem using a technical
`
`solution. I have also been asked to address whether the claim elements are routine
`
`and conventional.
`
`5.
`
`I am being compensated for my time spent on this matter, including
`
`independent study, document review, analysis, and writing. My opinions stated
`
`herein are based on review and analysis of the materials obtained in connection
`
`with my work in this matter, together with my education and experience. The
`
`opinions stated herein are my own. My compensation is not contingent upon my
`
`opinions stated herein or the outcome of this proceeding.
`
`6.
`
`As will be discussed in greater detail below, it is my opinion that the
`
`invention of claims 1 through 23 of the ’768 patent would not have been obvious to
`
`one of ordinary skill in the art at the time of the invention. The bases for my
`
`opinions are set forth below. One basis assumes that each of the claim elements
`
`can be found in the prior art. In addition, for purposes of this declaration, I want to
`
`make clear that I have been asked to assume that TSE qualifies as prior art to the
`
`‘768 patent, even though I understand that there is a significant issue in this
`
`proceeding as to whether or not that assumption is valid. As also discussed in
`
`greater detail below, it is my opinion that the invention of claims 1 through 23 of
`
`the ‘768 patent was not obvious at the time of the invention in view of TSE,
`
`2
`
`Page 4 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`Belden and Cooper, as alleged by Petitioner. The claims are not obvious because
`
`none of TSE, Belden, and Cooper, whether taken alone or in the suggested
`
`combination, teach the combination of elements, as claimed in the independent
`
`claims of the ’768 patent.1 My opinion is supported by overwhelming real world
`
`evidence, which I will discuss below, from both before and after the time of the
`
`Patent Owner’s introduction of the commercial embodiment of the invention. This
`
`evidence supports my opinion regarding the state of mind of one of ordinary skill
`
`in the art at the relevant time. This evidence also includes substantial objective
`
`indicia (secondary considerations) of non-obviousness. Taking this body of
`
`evidence as a whole, including the path from the prevalent GUI tools for electronic
`
`trading before the claimed invention, to the initial skepticism of the claimed
`
`invention, to widespread acceptance and copying, as well as other factors discussed
`
`below, it is my opinion that the claimed invention of the ’768 patent was not only
`
`not obvious to one of ordinary skill in the art at the time of the invention, but also
`
`that the claimed invention rises to the rare revolutionary and pioneering status, in
`
`the technical field of GUI tools for order entry in electronic trading. I also note that
`
`
`1 In addition, certain dependent claims further distinguish from the prior art and
`provide further independent bases that the invention, including the features of
`those dependent claims, would not have been obvious to one of ordinary skill in
`the art. I address some of these dependent claims as well below.
`
`3
`
`Page 5 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`during the original examination of a parent application,2 the Examiner assumed
`
`that the prior art included a trading GUI tool with all elements of those
`
`independent claims other than “single action order entry.” Thus, the “closest art”
`
`identified by the Examiner in that proceeding was assumed to include the other
`
`claim elements. It is also my opinion, based on my experience as one with skills
`
`higher than one of ordinary skill in the art, that the Examiner was correct in
`
`concluding that the independent claims would not have been obvious even with the
`
`above-identified assumption regarding the identified “closest art” and that the
`
`Examiner was correct in allowing the claims.
`
`II. QUALIFICATIONS & BACKGROUND
`7. My curriculum vitae is attached to this report as Exhibit 2201. Briefly,
`
`my expertise lies in the field of the engineering, design, and development and
`
`construction of graphical user interface (“GUI”) tools for electronic trading, such
`
`as those used in electronic trade execution systems and proprietary trading
`
`systems.
`
`
`2 The parent application resulted in the related U.S. Patent No. 6,772,132 and U.S.
`Patent No. 6,766, 304. The primary reference here, TSE, was cited and considered
`during reexamination proceedings involving the ‘132 and ‘304 patents. See Exhibit
`2202, ‘132 Reexam Certificate and Exhibit 2203, ‘304 Reexam Certificate. The
`claims of the ‘132 and ‘304 patents are related to the claims in the ‘768 patent
`because they all claim subject matter found in TT’s MD Trader product, discussed
`below.
`
`4
`
`Page 6 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`8.
`
`I have been actively trading on exchanges worldwide and managing
`
`portfolios of futures, commodities, stocks, and stock indexes since 1992. In 1996, I
`
`began developing trading decision and execution systems. At that time, my trading
`
`became completely reliant on the systems that I had developed. Ultimately, this led
`
`to my career in technology as a Chief Technology Officer (CTO) for several large
`
`trading companies and Managing Director of a large Canadian bank.
`
`9.
`
`As CTO of Emerald Market Systems in 1997, I designed and
`
`developed an internet quote system that was used by the Chicago Mercantile
`
`Exchange to provide free quotes for certain new markets that the exchange was
`
`promoting over the internet. The system had two versions. The first version was a
`
`HTML based quote application that provided typical last price, best bid and ask
`
`price information. The second version was a JAVA based version of the HTML
`
`quote application. Both of these versions were used to facilitate trading in the open
`
`outcry trading pits. In 1998, I designed and developed for a Chicago-based Futures
`
`Commission Merchant, named LFG, the first web browser based trade order entry
`
`system for the U.S. commodity markets known as “FuturesOnline.” When
`
`FuturesOnline was first released to users, there were no electronic exchanges for
`
`futures that were available to regular users who were not members of an exchange
`
`in the United States. Because of this, FuturesOnline was initially connected to the
`
`TOPS system at the Chicago Mercantile Exchange. This allowed traders connected
`
`5
`
`Page 7 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`via the internet to send orders using FuturesOnline, which would be routed to the
`
`relevant trading pit at the exchange using the TOPS system. FuturesOnline also
`
`provided quotes to its traders and also allowed them to view their previous
`
`transactions, open orders, account balances, etc. Later, when GLOBEX became
`
`available to regular customers of FCMs, FuturesOnline was connected to
`
`GLOBEX as an electronic exchange destination. I was responsible for designing
`
`and programming all of the graphical user interfaces (“GUIs”) and designing and
`
`implementing the database that FuturesOnline used for storing trades, orders,
`
`account balances, etc. There was another component to FuturesOnline which I
`
`developed and that was the broker version. This enabled brokers at LFG to see all
`
`of the account balances and open and closed orders for all of their clients, and it
`
`enabled the brokers to enter orders, modify existing orders, cancel orders or close
`
`out trades for any of their customer’s accounts. This was functionality that they
`
`had never had before and it greatly increased the productivity of the brokers and
`
`allowed them to have improved risk management over their customers’ trading
`
`activities. FuturesOnline was so successful that I created a white-labeled version
`
`that enabled other FCMs to use the FuturesOnline technology while it appeared to
`
`their customers that it was their own. FuturesOnline was white labeled to three
`
`FCMs, in addition to LFG’s use. In developing LFG’s FuturesOnline, I utilized
`
`Distributed Network Architecture (“DNA”) technology from Microsoft Corp.
`
`6
`
`Page 8 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`FuturesOnline was later featured on Microsoft’s website as a case study for its use
`
`of DNA technology. A copy of the case study is attached as Exhibit 2204,
`
`(Microsoft DNA Case Study). This technology was developed for electronic
`
`trading, not for mimicking or supporting open outcry trading. As will be discussed
`
`below, in the transition away from open outcry trading, some technology was
`
`developed to mimic open outcry trading, while other technology was developed to
`
`carry out electronic trading by sending trade orders to an electronic exchange for
`
`automatic anonymous matching. FuturesOnline falls into the latter category.
`
`10. During the period from about 1992 to 2002, I was active in the trading
`
`community in a variety of roles relating to trading and/or technology for trading, as
`
`described in this declaration. By virtue of this experience, I witnessed, participated
`
`in, and am familiar with the industry’s transformation from open outcry trading
`
`pits, to early trading tools for after-hours trading (such as the Chicago Board of
`
`Trade’s Project A and the CME/Reuters GLOBEX system) and, eventually, to
`
`what we refer to today as electronic trading and its technology based trading tools.
`
`11. From late 1999 until 2002, I was the CTO for Stafford Trading, a
`
`proprietary trading company in Chicago, Illinois, USA, which was one of the
`
`largest market makers on the U.S. equity option exchanges. In this capacity, I
`
`managed a staff of roughly one hundred individuals and an annual technology
`
`budget in excess of fifteen million dollars. This staff included approximately 40
`
`7
`
`Page 9 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`software developers, 40 network and server engineers, and 20 support staff. During
`
`this time, I also designed a new desktop order entry system to replace a legacy
`
`system for the traders at Stafford Trading. This system was connected to electronic
`
`exchanges and ECNs for stocks and options on stocks, and was connected to the
`
`CME GLOBEX electronic exchange for futures. I designed the GUIs for that
`
`system, which included Level II type quotes (this is functionally equivalent to
`
`Figure 2 in the TT patents). In April of 2000, while at Stafford Trading I became a
`
`founder and CTO of a technology company called Ragnarok Systems Inc., which
`
`was majority owned by the principals of Stafford Trading. Ragnarok Systems was
`
`a next generation online trading brokerage firm. Ragnarok Systems along with
`
`parts of Stafford Trading was acquired by Toronto Dominion Bank in March of
`
`2002. Ragnarok Systems was also featured on Microsoft’s website as an example
`
`of large commercial usage of Microsoft’s technologies in the Financial Services
`
`industry. At Toronto Dominion Bank (“the Bank”), a large Canadian bank, after
`
`the acquisition, I served until August 2003 as a Managing Director and CTO of the
`
`new entity at the Bank that was named TD Options, LLC. I subsequently returned
`
`to trading as a Managing Director at TD Options LLC and continued to further
`
`develop trading systems that I had begun using several years earlier. In 2006, I
`
`started my own trading group at TD Options LLC, while still serving as a
`
`Managing Director, and actively traded a long-short portfolio of U.S. Equities and
`
`8
`
`Page 10 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`U.S. equity index futures, using the trading strategies and software tools that I
`
`developed. This trading was electronic trading. When I refer to electronic trading, I
`
`am referring generally to a system in which traders send electronic orders to an
`
`electronic exchange, where the electronic exchange uses technology to implement
`
`an automatic matching engine (via hardware and software).
`
`12.
`
`I left TD Options LLC in October of 2008 and became a founder of a
`
`proprietary trading firm in Chicago, named Pembroke Trading LLC, specializing
`
`in algorithmic trading of futures markets. In this capacity, I was responsible for
`
`designing and managing the development of the user interfaces and electronic
`
`trading platforms and infrastructure for testing and executing trading strategies in
`
`live markets.
`
`13.
`
`In May of 2011, I started my own proprietary trading firm,
`
`Maridunum Capital, L.L.C., which specializes in automated algorithmic trading of
`
`Futures Markets. In this capacity, I was responsible for designing all trading
`
`software and algorithms for the company. Additionally, I was responsible for
`
`programming portions of the software.
`
`14.
`
`In May of 2016, I became a founder of a software company named
`
`Primal Quant LLC, which will provide trading strategy design and testing tools to
`
`online traders without the need for the trader to have programming experience or
`
`9
`
`Page 11 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`knowledge. At Primal Quant I am responsible for all GUI and database designs, as
`
`well as managing a team of software engineers.
`
`15.
`
`I am not a professional expert witness. My profession is the
`
`development of technology for trading and trading. My experience as an expert is
`
`limited to the subject matter of the TT patents, and I was hired more than 10 years
`
`ago in that role because of my relevant experience in the trading industry,
`
`including open outcry, electronic trading, and the development of technology for
`
`use in electronic trading. Prior to that, I had never testified as an expert witness in
`
`any matter. In sum, before getting involved as an expert, I had widespread
`
`exposure and personal knowledge as to the state of the art at the time of the
`
`invention, as well as before and after the time of the invention. Through my
`
`experience with the litigation, I was exposed to additional items of information.
`
`Coupled with my personal experience in the industry, I have therefore gained
`
`extensive knowledge of the art.
`
`III.
`
`INFORMATION CONSIDERED
`16.
`
`I am familiar with the ‘768 patent, the Petition and supporting exhibits
`
`and declaration, and the Board’s institution decision, and the January 13, 2017
`
`deposition transcript of Mr. Román. I am familiar with the prosecution history of
`
`the ‘768 patent. In addition, I worked on litigations involving related patents such
`
`10
`
`Page 12 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`as U.S. Patent Nos. 6,766,304 and 6,772,132, and 7,676,411, and I am familiar
`
`with the file histories of these related patents.
`
`17. As a result of my involvement in prior court proceedings for these
`
`related TT patents, I have been exposed to the large amount of alleged prior art that
`
`has been presented by the parties in the related litigations over the past ten years.
`
`Many, many documents relating to alleged prior art were produced by the
`
`defendants, members of the Joint Defense Group, and other third parties. In
`
`connection with the court proceedings, there were many dozens of depositions
`
`seeking information on the state of the art at the time of the invention, including a
`
`number of depositions of third party individuals who executed declarations
`
`regarding the uniqueness and benefits to the user and the industry of the
`
`commercial embodiment of the claimed invention. In addition, there were party
`
`contentions and expert reports relating to the validity of the patents. There were
`
`summary judgment filings relating to validity and declarations in support of such
`
`filings. Prior to trial in the eSpeed and CQG cases, the parties served expert reports
`
`and contentions. In the eSpeed and CQG cases, I testified at trial, as did a number
`
`of other experts for the parties. Voluminous material relating to the validity of the
`
`patents was developed. Because of my own experience in the industry, my review
`
`of the file history, and my experience in the district court proceedings, I have a
`
`11
`
`Page 13 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`thorough understanding of the state of the art at the time of the invention, and
`
`before and after the time of the invention.
`
`18.
`
`In the district court proceedings, I became familiar with the TSE
`
`reference that has been presented in this proceeding, as well as other TSE
`
`documents and the 2005 deposition of a TSE representative (Mr. Kawashima), who
`
`was recently deposed again. I have considered both deposition transcripts. For
`
`purposes of clarity, I will use the shorthand “TSE” to refer to the reference relied
`
`upon in this proceeding. TSE was first raised in the court proceedings more than
`
`ten years ago. In October of 2007, a jury determined that, among other things, TSE
`
`did not render the ’132 patent and the ’304 patent unpatentable and that TSE did
`
`not qualify as prior art. The district court agreed, and these findings were not
`
`appealed. I am also familiar with the prosecution of the ’132, ’304, and ’768
`
`patents at the PTO, including reexamination proceedings, in which the claims of
`
`the ’132 and ’304 patents were upheld, including over TSE. The alleged prior art
`
`asserted by Petitioners in this proceeding is either less pertinent or, at best for
`
`Petitioners, cumulative to the alleged prior art references that were considered by
`
`the PTO, either in the original prosecution or in the reexamination proceedings. In
`
`addition, as noted in the Other Publications section on the face of the ‘768 patent, a
`
`number of TSE related documents (including translations) were cited references
`
`and therefore were considered during prosecution. Ex. 1001 at pp. 2-7.
`
`12
`
`Page 14 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`19.
`
`In addition, I have personal experience with a wide variety of
`
`technologies for electronic trading (as referenced above in background) and, over
`
`the course of my professional involvement in trading, have seen numerous GUI
`
`tools for electronic trading. Throughout my professional trading career, I have
`
`made an effort to stay current and, when possible, ahead of the curve, on
`
`technologies for trading, including investigating new technology offerings,
`
`attending trade shows, and receiving sales pitches from trading technology
`
`vendors, as well as developing technology myself. I also have colleagues in the
`
`industry, some of whom would be considered one of ordinary skill in the art, and
`
`some of whom I would consider to be of significantly higher levels of skill.
`
`Because of my roles in the industry, from a time significantly before the invention
`
`until well thereafter, I was working and speaking on a regular basis with these
`
`colleagues and the traders themselves about technology for trading in general, and
`
`GUI tools in particular, and their needs, desires, frustrations and challenges with
`
`the technology available at the time. These experiences further inform my opinions
`
`from the perspective of one of ordinary skill in the art.
`
`20.
`
`In addition to the above, I have personally traded on electronic
`
`exchanges using Trading Technologies’ (“TT’s”) products, including MD Trader,
`
`which is the commercial embodiment of the inventions described, for example, in
`
`the ’768 patent. MD Trader has always embodied the claimed inventions described
`
`13
`
`Page 15 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`in the ‘768 patent since MD Trader was launched in 2000 through to the present. In
`
`addition, I have spoken with numerous users of MD Trader and other experts in the
`
`field about MD Trader and how it functions.
`
`IV. PERSON OF ORDINARY SKILL IN THE ART
`21. The technology at issue in this proceeding is a graphical user interface
`
`(“GUI”) tool for trading. In general, the term GUI refers to a human-machine
`
`interface that allows users to interact with the machine by utilizing graphical
`
`elements, as opposed to, for example, text-based interfaces. Text-based interfaces
`
`typically required the user to type commands on a keyboard. With a GUI tool, the
`
`user may interact with the graphical elements on a display, such as by using a
`
`keyboard, a mouse, a stylus, a finger, or other pointing device. GUI tools are
`
`constructed using a combination of software and hardware elements. In addition to
`
`desktop and laptop computers, GUI tools are used in a wide variety of handheld
`
`devices. GUIs are also sometimes referred to as MMIs (man-machine interfaces) or
`
`HCIs (human-computer interfaces). These GUIs are analogous to mechanical
`
`devices because, like mechanical devices, they are designed to permit a user to
`
`interact with a machine. For example, in older airplanes, the cockpit utilizes
`
`physical buttons, levers or switches to control the operation of the airplane. In
`
`modern day aircraft, the cockpit utilizes GUIs that enable the pilot to control the
`
`operation of the airplane. As another example, old calculators have push buttons
`
`14
`
`Page 16 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`that enable the user to enter values or operations, whereas today’s smartphones
`
`utilize, for example, a GUI that enables the user to enter the same values or
`
`operations.
`
`22. GUI tools like the invention of the ’768 patent are typically developed
`
`for and used by professionals, particularly at the time of the invention. Thus, in
`
`addition to providing desirable functionality, these GUI tools must be highly stable
`
`and reliable. In my experience, GUI tools for trading are extensively tested,
`
`including testing in all kinds of simulated market conditions, well in advance of
`
`any use in a live market. As discussed below, GUI tools are mission critical for
`
`professional electronic traders. They are the primary tools of their trade, just like
`
`GUIs in a cockpit are the primary tools for pilots flying modern day aircraft.
`
`23.
`
`In the course of my industry experience, I have hired people to do
`
`GUI tool development for electronic trading. Backgrounds included previous
`
`experience in software development, technical degrees in computer science,
`
`engineering or other science disciplines, or equivalent work experience, etc.
`
`24.
`
`In my opinion, one of ordinary skill in the art for purposes of this
`
`proceeding is a person having (1) a bachelor's degree or equivalent experience and
`
`(2) two years of experience designing and/or programming graphical user
`
`interfaces, including experience designing and/or programming graphical user
`
`interfaces for electronic trading based on input from a person with knowledge of
`
`15
`
`Page 17 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`the needs of an electronic trader. I have a greater level of skill, but I can speak
`
`about what one of ordinary skill in the art would understand because of my
`
`background and experience.
`
`25.
`
`I have reviewed Mr. Román’s definition of one of ordinary skill
`
`(submitted with the Petition) and I disagree with it for at least the reason that it
`
`does not provide sufficient weight to the experience designing and/or programming
`
`GUIs for electronic trading based on input from a person with knowledge of the
`
`needs of an electronic trader. Mr. Román’s definition instead focuses primarily on
`
`GUI experience, with no access to or knowledge of the needs of an electronic
`
`trader, which is plainly deficient. He suggests that merely direct or indirect
`
`experience with trading or related systems is adequate. This is incorrect because it
`
`ignores the needs of the trader for whom the GUI is designed, and further
`
`illustrates why his opinions regarding obviousness are incorrect. In addition, I
`
`disagree with his assertion that the person of ordinary skill would need a bachelor’s
`
`degree or higher in computer science or computer engineering. Based on my
`
`experience in the industry for over 20 years, I believe that this requirement is too
`
`restrictive, again skewing the view of the person of ordinary skill toward a
`
`generalized GUI designer and away from the recited field.
`
`26. My definition of the person of ordinary skill in the art is that of a
`
`baseline worker in this industry. Many individuals in the industry, as one would
`
`16
`
`Page 18 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`expect, have a significantly higher level of skill. My level of skill in the art is
`
`significantly higher than that of the person of ordinary skill, and my level of skill
`
`was attained through my numerous relevant work experiences, including trading
`
`experience, self–taught programming proficiencies, as well as experiences in
`
`designing, developing and implementing electronic trading systems.
`
`V. CLAIM CONSTRUCTION
`27.
`I was asked to review the following claim terms and provide my
`
`understanding of the broadest reasonable interpretation of these terms from the
`
`perspective of a person of ordinary skill in the art.
`
`A.
`“order entry region”
`28. Each independent claim of the patent recites an “order entry region”
`
`that includes “a plurality of locations for receiving single action commands to send
`
`trade orders.” The independent claims further recite that the plurality of locations
`
`include a “first fixed location” and a “second fixed location.” The patent also
`
`discloses sending an order, for example, by selecting a location in the order entry
`
`region through a single action of a user input device to both set a plurality of
`
`parameters for the trade order and send the trade order to the electronic exchange.
`
`The independent claims recite that the first fixed location “correspond[s] to a first
`
`price level along the price axis” and the second fixed location “correspond[s] to a
`
`second price level along the axis.” Under the broadest reasonable interpretation,
`
`17
`
`Page 19 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`the claimed order entry region includes a plurality of locations, each location
`
`corresponding with a different price level along the price axis (e.g., aligned with a
`
`price level), each location being configured to be selected by a single action
`
`command to both set a plurality of parameters for a trade order and to send the
`
`trade order to an electronic exchange. That both setting parameters and sending
`
`the trade order results from selection of a location of the order entry region is the
`
`only proper construction in light of the specification; indeed, this is the only
`
`example of order entry disclosed in the specification. Ex. 1001, 4:48-53, 7:24-31,
`
`8:64 – 9:2, 9:46 – 10:60. Further, the benefit of order entry speed, discussed infra
`
`in paragraphs 75, 89, and 107 among others, flows directly from this claim element
`
`and this construction.
`
`B.
`
`“setting a plurality of parameters for a trade order relating to the
`commodity and sending the trade order to the electronic exchange
`in response to a selection of a particular location of the order
`entry region by a single action of a user input device”
`29. Each independent claim of the patent recites the phrase “setting a
`
`plurality of parameters for a trade order relating to the commodity and sending the
`
`trade order to the electronic exchange in response to a selection of a particular
`
`location of the order entry region by a single action of a user input device.” Using
`
`the broadest reasonable interpretation of this phrase, this claim element requires
`
`that the single action of the user input device set a plurality of parameters for a
`
`trade order and also send the trade order to an electronic exchange by selecting a
`
`18
`
`Page 20 of 171
`
`TRADING TECH EXHIBIT 2169
`IBG et al. v. TRADING TECH. - CBM2016-00054
`
`

`
`particular location of the order e