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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`- - - - - - - - - - - - - - - - x
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`IBG LLC, et al., :
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` Petitioners, : CBM2016-00054
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`v. : Patent No. 7,693,768 B2
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`TRADING TECHNOLOGIES :
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`INTERNATIONAL, INC., :
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` Patent Owner :
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`- - - - - - - - - - - - - - - - x
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` Oral Deposition of
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` Kendyl A. Román
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` Washington, D.C.
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` Friday, January 13, 2017
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` 9:30 a.m.
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`Reported by:
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`Susan Ashe, RMR, CRR
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`Job No. 17784
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`TransPerfect Legal Solutions
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`Page 1 of 102
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`TRADING TECH EXHIBIT 2531
`IBG et al. v. TRADING TECH. - CBM2016-00054
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`- - - - - - - - - - - - - - - - x
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`IBG LLC, et al., :
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` Petitioners, : CBM2016-00054
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`v. : Patent No. 7,693,768 B2
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`TRADING TECHNOLOGIES :
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`INTERNATIONAL, INC., :
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` Patent Owner :
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`- - - - - - - - - - - - - - - - x
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` Oral Deposition of
`
` Kendyl A. Román
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` Washington, D.C.
`
` Friday, January 13, 2017
`
` 9:30 a.m.
`
`Reported by:
`
`Susan Ashe, RMR, CRR
`
`Job No. 17784
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
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`Page 1 of 102
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`TRADING TECH EXHIBIT 2531
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`Page 2
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`Oral Deposition of:
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` KENDYL A. ROMÁN
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`called for oral examination by counsel for
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`Petitioners at the Law Offices of Sterne, Kessler,
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`Goldstein & Fox, 1100 New York Avenue, Northwest,
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`Washington D.C., before Susan Ashe, RMR, CRR, of
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`TransPerfect Legal Solutions, a Notary Public in and
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`for the District of Columbia, beginning at 9:30
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`a.m., when were present on behalf of the respective
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`parties:
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`On behalf of Petitioners:
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` LEIF R. SIGMOND, JR., ESQUIRE
`
` MICHAEL D. GANNON, ESQUIRE
`
` McDonnell Boehnen Hulbert & Berghoff
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` LLP
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` 300 South Wacker Drive
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` Chicago, Illinois 60606-6709
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` (312) 913-0001
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` sigmond@mbhb.com
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` gannon@mbhb.com
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`On behalf of the Patent Owner and the Witness:
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` RICHARD M. BEMBEN, ESQUIRE
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` ROBERT SOKOHL, ESQUIRE
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` Sterne, Kessler, Goldstein & Fox
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` 1100 New York Avenue, NW, Suite 600
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` Washington, D.C. 20005
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` (202) 371-2600
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` rbemben@skgf.com
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` rsokohl@skgf.com
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` CONTENTS
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`Page 4
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`EXAMINATION BY: PAGE
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` COUNSEL FOR PETITIONERS 5
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` COUNSEL FOR PATENT HOLDER 84
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` PREVIOUSLY MARKED EXHIBITS
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`IBG
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`NUMBER DESCRIPTION PAGE
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`Exhibit 1025 Kendyl A. Román
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` Curriculum Vitae 7
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`Exhibit 1007 Declaration of
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` Kendyl A. Román 7
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`Exhibit 1026 Complete Listing of
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` Materials Considered 13
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`Exhibit 1012 International Application 14
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`Exhibit 1017 Trading Terminal
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` Operation Guide 36
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` (Exhibits not attached to transcript.)
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` P R O C E E D I N G S
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`Page 5
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`Whereupon,
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` KENDYL ROMÁN
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`the Witness, called for examination, having been
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`first duly sworn according to law, was examined and
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`testified as follows:
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` EXAMINATION
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`BY MR. SIGMOND:
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` Q. Good morning, Mr. Román. We meet again.
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` A. Good morning. Good to see you again.
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` Q. Could you please state your full name and
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`address for the record.
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` A. Kendyl Allen Román. And there's an accent
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`on the A in Román.
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` And the address, 3277 Kifer Road, Santa
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`Clara, California.
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` Q. And you understand you're under oath this
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`morning.
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` A. Yes.
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` Q. And this means that you're sworn to tell
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`the truth as if you were in a courtroom with a judge
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`and a jury.
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` A. Yes.
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` Q. And is there anything that would prevent
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`you from giving full and truthful testimony today?
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` A. No.
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` Q. Are you on any medication that would
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`prevent you from giving full and truthful answers?
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` A. No.
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` Q. I took your deposition I think twice in
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`May, May 3rd and May 5th, if I recall.
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` A. Yes, I recall.
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` Q. And have you been deposed in between then
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`and now?
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` A. Yes.
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` Q. How many times?
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` A. I think at least twice.
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` Q. In patent cases?
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` A. Trade secret case for sure.
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` I don't recall specifically the other one.
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`It more likely than not was a patent case.
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` Q. Do you know the names of the cases?
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` MR. BEMBEN: And I'll just caution
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`our witness not to divulge any privileged, protected
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`information.
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` A. Yeah. If you have a copy of my CV, I
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`could probably identify it quicker.
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` Q. Okay.
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` A. With more accuracy.
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` Q. We're using buzzwords already, huh?
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` I'm going to show you what's already been
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`Page 7
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`marked as IBG 1025.
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` A. Very good.
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` (Witness perusing.)
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` (Whereupon, Exhibit IBG 1025, previously
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`marked for identification, was presented to the
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`witness.)
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` A. So there are several new cases.
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` And the one that I remember being deposed
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`in was Zales. It's M&G Jewelers versus Zales.
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` And the other deposition I also think
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`would be a newer case.
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` Do you have my declaration?
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` Q. I do. Why don't I show you what's already
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`been marked as Exhibit 1007.
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` (Whereupon, Exhibit IBG 1007, previously
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`marked for identification, was presented to the
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`witness.)
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` (Witness perusing.)
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` A. At this point, I don't recall the -- I
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`don't recall any specifics.
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` Q. Could you look at Exhibit 1007 --
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`actually, before I do that, why don't I just go over
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`some of the -- I know you've been deposed a bunch of
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`times. We talked about that before.
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` A. Yes.
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` Q. But I want to go over just kind of some of
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`the ground rules.
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` So if you don't understand any of my
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`questions, ask me to clarify.
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` A. Yes.
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` Q. That way, if I ask a question and you
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`answer it, I'll assume that you understood what I
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`asked you.
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` Like last time, if you need a break, I may
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`ask that we complete any pending answer, but just
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`ask me and I'll accommodate you as best I can.
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` Now, one thing I noticed last time, and I
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`think it's you and I together, and I noticed it
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`already this morning, is please kind of give me a
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`chance to answer my question.
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` You're always doing such a good job in
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`trying to give me an answer, I notice we tend to
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`talk over each other, which makes it rough on the
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`court reporter.
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` A. Okay.
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` Q. See, like that.
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` Try to let me finish before you answer.
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` And I know you're just trying to do your
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`best.
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` So let's look at your declaration.
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` And I'd like to turn to page 16.
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` A. Okay.
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` Q. And do you see under paragraph 44, the
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`first bullet is GoPro versus Contour.
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` A. Yes.
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` Q. Were you deposed in that case?
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` A. I think they waived the deposition.
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` Q. So that wasn't one of the cases you can't
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`remember?
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` A. Yeah, my memory on the GoPro is that there
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`was no cross-examination.
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` Q. And which side did you represent, GoPro?
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` A. I represented GoPro, yes.
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` Q. And there again, just try your best to let
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`me finish.
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` Let's go off the record.
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` (Discussion off the record.)
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`BY MR. SIGMOND:
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` Q. Mr. Román, what did you do to prepare for
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`your deposition today?
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` A. I read through transcripts from May 3rd
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`and May 5th.
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` I read through the declaration, which is
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`IBG 1007.
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` And I've looked at the petition, the
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`institution decision, the specific references that
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`were used in the declaration.
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` Q. Anything else?
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` A. The exhibits, such as my CV and the list
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`of materials.
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` Q. Did you meet with anyone and prepare for
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`your deposition?
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` A. I did, yes.
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` Q. Could you tell me about that?
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` A. I met yesterday for about five hours with
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`these two fine gentlemen.
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` Q. Anyone else?
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` A. No.
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` Q. Let's look at 1007, your declaration.
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` I might slip today and call it your report
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`or expert report, but if I do that, will you know
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`what I mean? I tend to do that sometimes.
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` A. Yes. I think we both end up doing that.
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` Q. So let's first just look at page 86.
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` And that's your signature. Correct?
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` A. Yes.
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` Q. And did you prepare Exhibit 1007?
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` A. Yes.
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` Q. How long did you spend working on your
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`declaration for the '768 patent?
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` A. Well, as you know, there's several patents
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`that are similar, and this one, for example, has
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`common heritage, if you will, with other Trading
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`Technology International patents.
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` And initially I would say I spent at least
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`100 hours analyzing the earlier patents, the file
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`histories, the different type of prior art.
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` I did my own independent research looking
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`for the prior references and the supporting
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`references that I actually used in this report.
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` This particular report, as you probably
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`know, or this particular declaration, as you
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`probably know --
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` Q. See, we both do it.
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` A. -- is highly similar to other ones that
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`have already been done.
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` So this particular document essentially
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`was a lot of clerical cutting and pasting and minor
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`modifications.
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` So I would say I wrote the original
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`document, documents, that this is composed of.
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` Clerical staff would have done the
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`composition of this particular document.
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` And then did I the final review and
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`approval and edit.
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` Q. Go ahead.
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` A. And in that final review and edit, I
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`confirmed that all of my earlier words were there
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`and had not been modified.
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` Q. When you say "clerical staff," do you mean
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`your clerical staff?
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` A. In this case, it wouldn't have been my
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`staff, it would have been staff with the firm.
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` Q. And when you say "the firm," you mean
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`Sterne, Kessler?
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` A. Yes. And again, it may have been the
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`attorneys. I don't know who actually did it, so I
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`don't want to speculate.
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` Q. Do you know how much you billed for
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`preparing this report?
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` A. I don't have a specific number, no.
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` Q. Do you have an approximation?
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` A. Well, given my prior answer where there
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`were hundreds of hours, I think my rate is specified
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`in here.
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` It may not be, but I'm pretty sure it's
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`the same rate that we started with.
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` And it's approximately $500 an hour.
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` And so total billing that led to this
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`declaration is probably at least 100 hours times
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`500.
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` But again, this particular one was just a
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`review to make sure that my prior words were there
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`and that any changes I felt were necessary were
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`included.
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` Q. Could you look again at Exhibit 1007.
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` In paragraphs 3, 4, 5, and 6, you list
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`some materials that you've reviewed. Correct?
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` A. Yes.
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` MR. SIGMOND: And then in paragraph
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`7, you refer to Exhibit 1026, which I'm going to
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`hand you, which you say is a complete listing of
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`additional materials considered.
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` So let me get that for you.
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` (Whereupon, Exhibit IBG 1026, previously
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`marked for identification, was presented to the
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`witness.)
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` A. Thank you.
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` Q. Besides what's listed in paragraphs 3, 4,
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`5, and 6, and Exhibit 1026, are there any other
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`documents you reviewed in preparing your
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`declaration?
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` A. Not for this declaration, no.
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` Q. I want to show you what I'll call the
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`Belden reference, which is Exhibit 1012.
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` (Whereupon, Exhibit IBG 1012, previously
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`marked for identification, was presented to the
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`witness.)
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` Q. So looking at Exhibit 1012, are you
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`familiar with this reference?
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` A. Yes, I am.
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` Q. And remember to try to let me finish. I
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`appreciate your effort.
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` Let's turn to a figure that I believe you
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`discuss in your declaration, Figure 2b.
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` And, you know, we're using these little --
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`in these proceedings we use these little numbers at
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`the bottom, you know, the little tiny numbers.
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` The first page is 0001.
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` Let's go to page 0045, which is Figure 2b,
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`I believe.
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` A. Okay.
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` Q. And you're familiar with this. Correct?
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` A. Yes.
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` Q. This area designated 2005-5, do you see
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`that on the -- kind of left of the figure with the
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`arrow?
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` A. Yes.
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`March '89 contracts?
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` A. Let's see.
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` Q. I'm not going to suggest this is the only
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`place you could confirm that, but you might want to
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`look at Belden page 33-I.
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` But feel free to look wherever you want.
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` (Witness perusing.)
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` A. Thank you for that.
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` So what you see in the upper left, there's
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`a small rectangle that says "USH."
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` And on page 0033, it says: March '89
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`bonds, abbreviated USH.
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` So I believe that's correct.
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` Q. So back on page 0045 of Belden, in this
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`area 205-5, all these squares and circles relate to
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`that USH?
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` A. That's correct.
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` Q. And the squares are the bids. Correct?
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` A. Let me see.
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` (Witness perusing.)
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` Q. You know, if you don't mind, why don't I
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`refer you to page 52 and 53 and maybe 54 of your
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`declaration. If you want to just take a minute to
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`review that just to refresh your recollection.
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` A. So the blue square is for offers to
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`sell -- oh, red oval is offers to sell, and the blue
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`square is bids to buy contracts.
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` Q. And I think I said this to you last time.
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`Those ovals look circular to me, but an example of
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`one would be 205-2. Correct?
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` A. Yes.
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` So it is proper to call it an oval, even
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`though it has a perfect center -- and its common
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`foci, I guess.
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` Q. So let's look at 205-2. See where it says
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`"DAS"? Can you tell me what that is?
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` Is that the traders -- well....
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` A. Can you repeat the question?
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` Q. Yeah. In 205-2, that oval that's pointed
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`to, DAS, I'm trying to figure out what that means.
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` A. Yeah. So that indicates --
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` MR. BEMBEN: Give me a chance to
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`object.
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` Objection; form.
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` A. So those initials identify different
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`traders.
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` So the 205 DAS is offering 50 contracts on
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`March bonds.
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` Q. Back to the upper -- and I'm holding it in
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`landscape view -- the upper left-hand corner of this
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`figure where it has "USH" in the box.
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` A. Right.
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` Q. Do you see that?
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` A. I think that's part of -- well, hard to
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`tell.
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` It's just above where 205-1 points.
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` Q. The numbers on the right and left of USH,
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`can you tell me what they represent?
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` A. So the 09 and the 11 are -- the 11 is the
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`current offer price, I believe, and the 9 is the
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`current bid price.
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` Q. And do you know what the 925 and the 750
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`is?
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` MR. BEMBEN: Objection; form.
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` A. If you look at all of the other squares
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`and ovals and you add up the bids and the offers, I
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`think it's the accumulation of those.
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` But -- it's an aggregate number.
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` I haven't proven that it adds them all up,
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`but....
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` Q. So you're familiar with the term "inside
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`market." Correct?
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` A. Yes.
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` Q. Does that 0911 represent the inside market
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`for this USH?
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` A. I believe it does.
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` Q. And let's look to the right.
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` Do you see where it says "MBH"?
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` A. Yes.
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` Q. And again, I'm holding this in landscape
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`view, just so the record's clear.
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` Is that a different commodity?
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` A. I believe so.
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` And probably the better answer I can give
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`is, if you look at the bottom, it's USH-UHM, the
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`bottom left.
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` That's probably the same bond but with
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`perhaps a different date where the MBH is different.
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` Q. And then the other one -- let me see if I
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`can point you to this.
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` Do you see there's one that just says --
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`oh, actually, do you see how there's numbers on the
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`bottom for the different -- those different boxes,
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`P-1, P-2, P-3, P-4?
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` Do you see that?
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` MR. BEMBEN: Objection; form.
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` A. Yes. So I see that there is eight boxes,
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`P-1 through P-8.
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` Q. Let's look at box P-2.
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` Do you see that?
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` A. Yes.
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` Q. And that's USN.
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` Do you know what that refers to?
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` A. I don't recall specifically, but it may
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`indicate in this packet.
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` Q. Do you know just generally what it refers
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`to?
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` A. Well, it would be the -- it would be
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`indicating a different security.
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` Q. So just kind of big picture, looking at
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`this Figure 2b of Belden, there's the USH and then
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`the MBH, TNH, FFH, all these others at the bottom.
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`Each of them is a different security?
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` MR. BEMBEN: Objection; form.
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` A. Generally they're different in some way,
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`but, as I mentioned regarding the lower left, the
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`USH-USM might be the same as USH but with a
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`different maturity date or something like that.
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` Q. So -- go ahead. I'm sorry.
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` A. I was just going to say, the thing that
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`distinguishes this is there's a different set of
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`prices for each of these which are indicated in each
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`of those boxes.
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` Q. That was going to be my next question.
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` A. Okay.
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` Q. So each of these shows what we've called
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`an inside market for each of these instruments.
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`Correct?
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` A. Yes.
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` Q. All right. Back to -- oh.
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` Do you see in the 205-5 box, there's an
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`oval with TCO. Correct?
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` A. Yes.
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` Q. And it indicates 50?
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` A. Yeah.
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` Q. I think you told me that was the number of
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`contracts he was either -- I forget if it was
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`bidding or offering.
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` A. I think he's offering.
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` Q. And then if you look at the USM, there's a
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`square with TCO 25.
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` Do you see that?
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` A. Yes.
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` Q. Would that indicate that the same trader
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`is bidding 25 on the USM?
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` A. Yes.
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` Q. And then USH-USM it says in an oval "TCO
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`50."
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` Would that again be the same trader
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`offering 50?
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` A. Yes.
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` Q. So we see this TCO trader is in different
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`instruments. It has orders in different
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`instruments.
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` Is that correct?
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` MR. BEMBEN: Objection;
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`mischaracterizes his testimony.
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` A. He's in three different inside markets.
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`Well, yeah.
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` Q. Now, is there anywhere as this screen is
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`configured where there's any prices off the inside
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`market that are shown to a trader?
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` MR. BEMBEN: Objection; form.
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` Give me a chance to object.
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` A. So this figure is showing specifically the
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`inside market.
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` Elsewhere in Belden it talks about resting
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`orders that are not at the market.
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` I think that's on page 29.
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` Q. Just so the record's clear, would you
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`refer to the little numbers at the bottom? Because
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`we have big numbers at the top.
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` A. Right. Yeah. Yeah.
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` So I think it's big numbers at the top,
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`and the little number is 0031.
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` And it's, oh, about the bottom third of
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`the page, there's a sentence that says: Resting
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`orders comprising bids or offers which are not at
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`the market may be entered into the system.
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` And it says: Such orders will not appear
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`in the trading arena until all bids or offers at the
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`market are met.
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` So bids and offers that are not at the
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`market would show up in that arena.
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` And your question was about that diagram,
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`and I understand that's the arena.
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` Q. But they don't show up until, if I'm
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`reading this right, until all the bids or offers at
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`the market are met. Correct?
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` A. That's the way I understand.
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` Q. So if I'm looking at Figure 2b, until all
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`these bids and offers at the market are met, no
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`other price would be shown in Figure 2b of Belden.
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` MR. BEMBEN: Objection; form.
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` A. That's the way I understand it.
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` Q. So this figure alone, as it is here,
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`doesn't show any market price for any of these
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`instruments. Correct?
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` MR. BEMBEN: Objection; form.
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` A. Can you repeat that? I didn't hear it
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`all.
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` Q. Yeah. So in this figure alone -- and I'm
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`referring to Figure 2b of Belden -- it doesn't show
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`any market depth for any of these instruments?
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` MR. BEMBEN: Objection; form.
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` A. You know, this is a dynamic screen, you
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`know, it continues to change.
`
` But as drawn in this example in this
`
`moment of time, everything would be at the inside
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`market.
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` Q. So in Figure 2b of Belden, there's no
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`price axis. Correct?
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` MR. BEMBEN: Objection; form.
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` A. What do you mean by "price axis"?
`
` Q. Is it a term you've used in your
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`declaration?
`
` A. Yes, but it was relating to a different
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`patent.
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` Q. It was relating to the TIC, I think.
`
`Correct?
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` MR. BEMBEN: Objection; form.
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` A. Do you have a particular part in my
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`declaration you're asking about?
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` Q. Let me see....
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` Look at paragraph 99 of 1007.
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` A. Okay.
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` Q. Do you see where you say: In the TSE's
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`board screen, the column labeled 11 -- and then
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`there's in brackets "order price column" -- is a
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`price column. And then you have a cite.
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` Then you say: The price column is a price
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`axis having a plurality of price levels.
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` A. Yes.
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` Q. What I'm trying to figure out is, you
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`know, I'm just -- you use TSE with Belden.
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` A. Right.
`
` Q. And I assume you're relying on TSE to
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`contend that that shows the price axis. Right?
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` MR. BEMBEN: Objection; form.
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` A. Yes. So TSE has this price column which
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`is the price axis.
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` We bring Belden in just because there's
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`some ambiguity of what TSE teaches.
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` And specifically, I think it's for the
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`single action.
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` Q. You're not relying on Belden to show a
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`price axis though. Correct?
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` MR. BEMBEN: Objection; form.
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` A. So in the proposed combination that I have
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`here, TSE shows the price axis, and I bring the
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`teaching of Belden of single click to show that it
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`would have been obvious to do a single action
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`without having the confirmation window of TSE
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`necessarily stop you from going straight through.
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` Q. But with that understanding, I'm just
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`trying to focus on Belden.
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` Does Belden show a price axis?
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` MR. BEMBEN: Objection; form.
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` A. Well, that's why I asked you what you
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`meant by "price axis."
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` I don't see a column like TSE has a
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`column, but there are different prices. For
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`example, there's USH, and then there's -- well,
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`let's look at USM.
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` There's a USM and there's a USM 90, and
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`there are different prices associated with those.
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`And there's vertical, there's ones above the other.
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` Q. But USM and USM 90 are different
`
`instruments. Correct?
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` MR. BEMBEN: Objection; form.
`
` A. We need to look them up. You know, they
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`might be the same thing with just a different
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`characteristic, like maturity date or something like
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`that.
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` I'm just saying it's possible that you
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`could have, you know, the same security that just
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`has a different characteristic, and therefore, it
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`would have a different price.
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` Q. But as configured, this Figure 2b doesn't
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`have what you've pointed to as a price axis.
`
`Correct?
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` MR. BEMBEN: Objection; form.
`
` A. TSE does have a price column, which is a
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`price axis with a plurality of price levels.
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` I'm not relying on Belden to teach a price
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`axis. But, given that you keep coming back to it, I
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`would say that there's USM and USM 90, and they're
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`configured in a vertical configuration with two
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`different prices. So....
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` Q. For USH, the USH instrument, is there a
`
`price axis shown?
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` MR. BEMBEN: Objection; form.
`
` A. Well, for USH, there's also this USH-USM.
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` For USC, there's a USC and a USC 90.
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` For USU, there's a USU and a USU 90.
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` Q. And it's your contention that those are
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`price axis?
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` MR. BEMBEN: Objection;
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`mischaracterizes his testimony, scope, form.
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` A. Yes. So that's not an analysis that I've
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`done.
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` I think I'm pretty clear on using TSE's
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`price column for the teaching of the price axis.
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` And I'm bringing Belden in for, I believe,
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`single-action teaching.
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` Q. How is an order placed in Belden for, say,
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`the USH?
`
` A. So in my declaration, I discuss at
`
`paragraph 109, trading is done by using the mouse to
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`move a cursor onto an icon of a trader and pushing a
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`button, i.e., clicking on the icon.
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` And specifically I use the USH example:
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`To hit a bid or take an offer using the mouse, the
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`trader would enter the amount if less than what the
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`icon was showing, point and click on icon with mouse
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`in the appropriate partition.
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` And then it goes on to say: If less than
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`what the icon is showing, the enter amount is
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`optional.
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` So just by single clicking on an icon, an
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`order could be placed.
`
` Q. I think you give an example in
`
`paragraph 109 of your declaration: To purchase
`
`50 contracts from DAS at the current offer price of
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`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
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`Page 27 of 102
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`TRADING TECH EXHIBIT 2531
`IBG et al. v. TRADING TECH. - CBM2016-00054
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`Page 28
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`11.
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` Do you see that where you say that?
`
` A. Yes.
`
` Q. And you say the pointer could point and
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`click on icon 205-2.
`
` Do you see that?
`
` A. Yes.
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` Q. I want to go back to this TCO, which is
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`just under that DAS 205-2.
`
` A. Right.
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` Q. Is the same thing true there, you would
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`point and click there to -- I'm trying to think if
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`you're buying or selling.
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` But you would point and click on TCO 50 to
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`execute an order. Correct?
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` A. Yes.
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` MR. BEMBEN: Objection; form.
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` Q. In Belden, is there a place where there's
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`an order-entry region that's corresponding to a
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`price level?
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` MR. BEMBEN: Objection; form.
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` A. So again, I'm not relying on Belden for
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`teaching that specifically.
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` But as we talk
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