UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`IBG LLC,
`INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC.,
`Petitioners
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`____________________
`
`Patent No. 7,693,768 B2
`____________________
`
`
`DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITION FOR
`COVERED BUSINESS METHOD REVIEW OF
`U.S. PATENT NO. 7,693,768
`
`
`IBG 1007
`CBM of U.S. Pat. No. 7,693,768
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`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`IBG LLC,
`INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC.,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`____________________
`
`Patent No. 7,693,768 B2
`____________________
`
`
`DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITION FOR
`COVERED BUSINESS METHOD REVIEW OF
`U.S. PATENT NO. 7,693,768
`
`
`IBG 1007
`CBM of U.S. Pat. No. 7,693,768
`
`
`
`U.S. Patent No. 7,693,768 B2
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`I, Kendyl A. Román, declare as follows:
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`1.
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`I have been engaged by Sterne, Kessler, Goldstein & Fox P.L.L.C. on
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`behalf of IBG LLC, Interactive Brokers LLC, TradeStation Group, Inc., and
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`TradeStation Securities, Inc., 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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`7,693,768 B2, entitled “Click based trading with intuitive grid display of market
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`depth,” by Gary Allan Kemp, II, et al., filed October 25, 2006 and issued April 6,
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`2010, (the “’768 Patent”). I understand that the ’768 Patent is currently assigned to
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`Trading Technologies International, Inc. (“TT”).
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`2.
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`I understand the ’768 Patent claims benefit from U.S. provisional
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`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 ’768 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.
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`I have reviewed and am familiar with the specification of the ’768
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`Patent. I understand that the ’768 Patent has been provided as Exhibit 1001. I will
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`cite to the specification using the following format: (’768 Patent, 1:1-10). This
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`example citation points to the ’768 Patent specification at column 1, lines 1-10.
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`4.
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`I have reviewed and am familiar with the file history of the ’768
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`Patent. I understand that the file history has been provided as Exhibit 1002.
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`U.S. Patent No. 7,693,768 B2
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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 ’768 Patent:
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`• U.S. Patent No. 5,077,665 to Silverman et al. (“Silverman”). I
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`understand that Silverman has been provided as Exhibit 1010.
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`• U.S. Patent No. 5,297,031 to Gutterman et al. (“Gutterman”). I
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`understand that Gutterman has been provided as Exhibit 1011.
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`• WO 90/11571 to Belden et al. (“Belden”). I understand that
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`Belden has been provided as Exhibit 1012.
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`• U.S. Patent No. 5,960,411 to Hartman et al. (“Hartman”). I
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`understand that Hartman has been provided as Exhibit 1015.
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`• A certified translation of “System for Buying and Selling Futures
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`and Options Transaction Terminal Operational Guidelines”
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`(“TSE”). I understand that the original Japanese language
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`document was provided as Exhibit 1016, the certified translation
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`provided as Exhibit 1017, and the certification of translation
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`provided as Exhibit 1018.
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`6.
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`I have also reviewed and am familiar with:
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`U.S. Patent No. 7,693,768 B2
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`• “About Face: The Essentials of User Interface Design,” by Alan
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`Cooper (1995) (“Cooper”). I understand that Cooper has been
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`provided as Exhibit 1022.
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`• “Designing the User Interface: Strategies for Effective Human-
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`Computer Interaction,” by Ben Shneiderman (1998) (“Shneiderman”).
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`I understand that Shneiderman has been provided as Exhibit 1023.
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`• “Inside Macintosh, Promotional Edition,” by Apple Computer, Inc.
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`(1985) (“Inside Macintosh”). I understand that Inside Macintosh has
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`been provided as Exhibit 1036.
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`• Dictionary of Computing, definition of “software” (1996) (“Oxford
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`Dictionary”). I understand that Oxford Dictionary has been provided
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`as Exhibit 1037.
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`• Image from Super Mario Bros. game (1985). I understand that this
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`image has been provided as Exhibit 1042.
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`• Source code for Metal Warrior V1.6 (1999). I understand that this
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`source code as been provided as Exhibit 1043.
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`• U.S. Patent No. 6,205,260 to Crinon et al. (“Crinon”). I understand
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`that Crinon has been provided as Exhibit 1044.
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`7.
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`A complete listing of additional materials considered and relied upon
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`in preparation of my declaration is provided as Exhibit 1026. I have relied on
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`U.S. Patent No. 7,693,768 B2
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`these materials to varying degrees. Citations to these materials that appear below
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`are meant to be exemplary but not exhaustive.
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`8.
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`The ’768 Patent describes click based trading with intuitive grid
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`display of market depth. (’768 Patent, Title.) I am familiar with the technology
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`described in the ’768 Patent as of the earliest possible priority date of the ’768
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`Patent (March 2, 2000).
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`9.
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`I have been asked to provide my technical review, analysis, insights
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`and opinions regarding the ’768 Patent and the above-noted references that form
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`the basis for the grounds of unpatentability set forth in the petition for Covered
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`Business Method Review of the ’768 Patent.
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`I.
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`QUALIFICATIONS
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`10. See my Curriculum Vitae provided as Exhibit 1025 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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`11. 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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`U.S. Patent No. 7,693,768 B2
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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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`12. 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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`13.
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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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`14.
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`In the late 1960’s and 1970’s, the University of Utah was known for
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`its pioneering work in computer graphics (and the Internet1). At BYU, I got
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`involved 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 with
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`graphical display. Later, Professor Ashton and Bruce Bastian founded
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`WordPerfect.
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`15.
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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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`1 In 1969, University of Utah was one of the first four nodes on the Internet.
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`U.S. Patent No. 7,693,768 B2
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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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`16.
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`In 1981, I worked at International Business Machines (“IBM”) in San
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`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 Personal
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`Computer (“PC”) was released. The IBM PC also supported graphical user
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`interfaces.
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`17.
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`In 1982, at Dialogic, I improved the performance of the Computer
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`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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`18.
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`In this timeframe, I had experience with Tandy computers, including
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`the TRS-80, and Commodore VIC 20 computers, which supported graphical user
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`interfaces.
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`19.
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`In 1984, I starting writing programs for the Apple Lisa and
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`Macintosh, which had a sophistical graphical user interface built into the firmware
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`and operating system. Both Lisa and Macintosh used a one-button mouse as a
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`2 The software, the Lucas Drawing System, had been developed by Lucas
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`Films to aid in the production of Star Wars.
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`U.S. Patent No. 7,693,768 B2
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`pointing device. The user controls various operations by clicking, double clicking,
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`or 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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`20.
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`I developed a Macintosh program that drew graphical icons (or
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`polygons) on the display.3 The icons changed size based 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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`21. 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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`3 An article regarding the software was published in MacWorld Magazine
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`around February 1987. A review was published in 1990 by the Boston Computer
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`Society, 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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`U.S. Patent No. 7,693,768 B2
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`22. 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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`23.
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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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`24.
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`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
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`various graphics adapters and display devices throughout the HP product line. I
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`worked with a 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.
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`25.
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`In 1991 and 1992, at Slate and Apple, I worked with the pen based
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`tablets and handheld computers including, the NCR tablet and Newton PDA.
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`26.
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`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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`U.S. Patent No. 7,693,768 B2
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`In addition, I taught users how to customize CAD software to perform complex
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`custom operations based on a single action with a user input device.
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`27.
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`In 1993 and 1994, at Apple I worked with the Apple Media Tool team
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`and the SK8 team, which included working with state of the art graphic display
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`systems.
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`28.
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`In the early 1990’s, before the World Wide Web became
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`commercialized, multimedia technology was becoming state of the art. During this
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`time, interactive CD-ROMs, early commercial Internet sites, high-resolution color
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`animation, and digital video were state of the art technologies. While at The Carl
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`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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`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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`29. 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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`U.S. Patent No. 7,693,768 B2
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`30. Also in the mid-1990s, we developed a database driven, on-demand
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`catalog publish 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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`HP.
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`31.
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`In the mid-1990s, 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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`32. 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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`33.
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`In many of these professional assignments, I analyzed the
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`architecture, function, and operation of software with graphical user interfaces.
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`34. 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. (“Tradescape”) cases. In those
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`U.S. Patent No. 7,693,768 B2
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`cases, I reviewed the source code and operations of the market-leading day trading
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`systems and illicit copies. I also surveyed the current state of the art to address the
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`trade secrets versus what was publicly known. Tradescape was later acquired by
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`E*Trade.
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`35. 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.
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`36.
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`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
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`their trading software.
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`37.
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`I performed a code review for a patent case, Chicago Board Options
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`Exchange v. International Securities Exchange, which involved security exchange
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`trading software.
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`38. 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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`U.S. Patent No. 7,693,768 B2
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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.
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`39. My Curriculum Vitae identifies over 80 issued patents and over 75
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`published patent applications for which I am listed as an inventor or assignee.
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`Several of my inventions include graphical user interfaces and networked client-
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`server systems. These include:
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`• U.S. Patent No. 8,590,777, Space equipment recognition and control
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`using handheld devices;
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`• U.S. Patent No. 8,500,563, Display, device, method, and computer
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`program for indicating a clear shot;
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`• U.S. Patent No. 8,282,493, Display, device, method, and computer
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`program for indicating a clear shot;
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`• U.S. Patent No. 7,698,653, Graphical user interface including zoom
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`control box representing image and magnification of displayed image;
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`• U.S. Patent No. 7,424,473, System and method for asset tracking with
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`organization-property-individual model;
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`U.S. Patent No. 7,693,768 B2
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`• U.S. Patent No. 7,257,158, System for transmitting video images over
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`a computer network to a remote receiver;
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`• U.S. Patent No. 7,191,462, System for transmitting video images over
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`a computer network to a remote receiver; and
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`• U.S. Patent No. 6,803,931, Graphical user interface including zoom
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`control box representing image and magnification of displayed image.
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`40.
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`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”).
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`41. 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.
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`42.
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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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`U.S. Patent No. 7,693,768 B2
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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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`A. Testifying Engagements
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`43. Cases in which I have testified as an expert witness at trial or by
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`deposition during the previous four years are identified as:
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`•
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`•
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`•
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`•
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`•
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`•
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`•
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`Davis and Carlos v. HireVue, Inc., No. 140900780 (Utah State 3rd
`District Court, Salt Lake County);
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`Embry v. Acer America Corp., No. 5:09-cv-01808 (N.D. Cal.);
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`Futurelogic, Inc. v. Nanoptix, Inc., 2:10-cv-07678 (C.D. Cal.);
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`Hickok, Inc. v. SysTech International, LLC, No. 1:7-cv-03565 (N.D.
`Ohio);
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`Miller v. Fuhu, Inc., No. 2:14-cv-6119-CAS(ASx) (C.D. Cal.);
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`MyKey Technology Inc. Patent Litigation, No. 2:13-ml-02461 (C.D.
`Cal.);
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`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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`U.S. Patent No. 7,693,768 B2
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`•
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`•
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`•
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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.);
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`SAS Institute, Inc. v. World Programming Limited, No. 5:10-CV-25-
`FL (E.D.N.C.);
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`T. Rowe Price Investment Services, Inc. v. Secure Axcess, LLC, No
`CBM2015-00027 (U.S. Patent Trial and Appeal Board).
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`TD Ameritrade v. Trading Techs. Int’l, Inc., Nos. CBM2014-00131,
`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.).
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`44. 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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`•
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`•
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`•
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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-
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`00181, CBM2015-00182, CBM2016-00009, and CBM2016-00032 (U.S.
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`Patent Trial and Appeal Board);
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`Innersvingen AS v. Sports Hoop, Inc., No. 2:12-cv-05257 (C.D. Cal.);
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`•
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`•
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`•
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`•
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`Lilith Games (Shanghai) Co. Ltd. v. uCool, Inc., No. 4:15-cv-01267
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`U.S. Patent No. 7,693,768 B2
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`(N.D. Cal.);
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`Malanche v. Eisenhower Medical Center, No. INC1108128 (Superior
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`Court of California, Riverside County);
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`Paycom Payroll, LLC v. Richison, No. 5:09-CV-00488-W (W.D.
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`Okla.);
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`Tradestation Group Inc. v. Trading Techs. Int’l, Inc., CBM2016-
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`00031, (U.S. Patent Trial and Appeal Board); and
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`Twin City Fan Companies, Ltd. v. FPT Software, No. 0:12-cv-1357
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`(D. Minn.).
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`45. 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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`46.
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`In Konrad v. General Motors, et al., 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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`U.S. Patent No. 7,693,768 B2
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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.
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`47.
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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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`48.
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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.
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`49. My Curriculum Vitae contains further details on my education,
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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 $495.00 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 ’768 Patent.
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`II. MY UNDERSTANDING OF CLAIM CONSTRUCTION
`50.
`I understand that, during a covered business method review, claims
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`are to be given their broadest reasonable construction in light of the specification
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`as would be read by a person of ordinary skill in the relevant art.
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`U.S. Patent No. 7,693,768 B2
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`III. MY UNDERSTANDING OF OBVIOUSNESS
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`51.
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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.
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`52.
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`I understand that a patent claim is invalid if the claimed invention
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`would have been obvious to a person of ordinary skill in the field at the time of the
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`purported invention, which is often considered the time the application was filed.
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`This means that even if all of the requirements of the claim cannot be found in a
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`single prior art reference that would anticipate the claim, the claim can still be
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`invalid.
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`53. 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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`• 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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`U.S. Patent No. 7,693,768 B2
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`54. To obtain a patent, a claimed invention must have, as of the priority
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`date, been nonobvious in view of the prior art in the field. I understand that an
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`invention is obvious when the differences between the subject matter sought to be
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`patented and the prior art are such that the subject matter as a whole would have
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`been obvious at the time the invention was made to a person having ordinary skill
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`in the art.
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`55.
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`I understand that to prove that prior art or a combination of prior art
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`renders a patent obvious, it is necessary to (1) identify the particular references
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`that, singly or in combination, make the patent obvious; (2) specifically identify
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`which elements of the patent claim appear in each of the asserted references; and
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`(3) explain how the prior art references could have been combined in order to
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`create the inventions claimed in the asserted claim.
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`56.
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`I understand that certain objective indicia can be important evidence
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`regarding whether a patent is obvious or nonobvious. Such indicia include:
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`commercial success of products covered by the patent claims; a long-felt need for
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`the invention; failed attempts by others to make the invention; copying of the
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`invention by others in the field; unexpected results achieved by the invention as
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`compared to the closest prior art; praise of the invention by the infringer or others
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`in the field; the taking of licenses under the patent by others; expressions of
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`U.S. Patent No. 7,693,768 B2
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`surprise by experts and those skilled in the art at the making of the invention; and
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`the patentee proceeded contrary to the accepted wisdom of the prior art.
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`IV. LEVEL OF ORDINARY SKILL IN THE ART
`57. A person of ordinary skill in the art at the time of the alleged
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`invention (“POSA”) would have had the equivalent of a Bachelor’s degree or
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`higher in computer science or computer engineering and at least 2 years working
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`experience designing and/or programming graphical user interfaces, and direct or
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`indirect experience with trading or related systems. Experience could take the place
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`of some formal training, as domain knowledge and user interface design skills may
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`be learned on the job. This description is approximate, and a higher level of
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`education or skill might make up for less experience, and vice versa.
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`V. BACKGROUND OF THE SUBJECT MATTER DISCLOSED IN THE
`’768 PATENT
`A. Computer Hardware, Software, and Firmware
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`58. Originally, computers were composed only of physical circuits,
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`known as hardware,4 that were programmed by physically configuring wires (like a
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`telephone switch board operator). Computer programs (a series of computer
`
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`4 Hardware is the tangible components of a computing system, such as
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`vacuum tubes, wires, circuit boards and other discrete components.
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`- 21 -
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`U.S. Patent No. 7,693,768 B2
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`instructions) stored in memory are known as software,5 because they can be
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`modified much more easily than hardware. In the late 1970’s, PCs became
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`commercial products (such as the Apple II in 1977). In some PCs, a bootstrap
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`loader and other basic input and output programs were permanently stored in
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`hardware chips, known as read-only memories (“ROM”). These programs recorded
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`indelibly in ROM were no longer “soft” enough to be modified, but could be
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`changed by replacing one socketed ROM with another ROM containing another
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`version of the program. Because they are intimately bonded with the hardware,
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`these programs are called firmware.6
`
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`5 Software is a “generic term for those components of a computer system
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`that are intangible rather than physical. It is most commonly used to refer to the
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`programs executed by a computer system as distinct from the physical hardware of
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`that computer system, and to encompass both symbolic and executable forms for
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`such programs.” (Exhibit 1037, Oxford Dictionary ‘software’.)
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`6 Generally, firmware refers to CPU instructions stored in a programmable
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`ROM.
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`- 22 -
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`A.
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`Input/Output Adapters and User Input Devices
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`U.S. Patent No. 7,693,768 B2
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`59.
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`In addition to the CPU and main memory, a computer usually has
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`various input and output (or 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
`
`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.
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`B. Display, Pixel, and Video Frame
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`60. When Philo T. Farnsworth invented electronic television in the late
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`1920’s, he modified a vacuum tube to control the movement of an electron beam
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`from the cathode (the negative terminal) on the back the tube to scan across the
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`screen on the other side of the tube (the anode, or positive terminal). Where the
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`beam hits the glass (and coating of phosphors) the glass glows. Magnetic coils
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`deflect the electron beam. In television, the entire front of the tube is scanned
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`repetitively in a fixed pattern called a raster. The intensity of the electron beam is
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`modified to change the brightness on point along the raster scan. The result points
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`on the screen are called picture elements, or “pixels.”
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`61.
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`In the United States, the National Television System Committee
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`(“NTSC”) standard defines a raster of 525 scan lines, which refreshes 30 times a
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`U.S. Patent No. 7,693,768 B2
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`second. Each time the video screen is refreshed the contents is a frame of video
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`data. The frame is interlaced with odd and even line fields with a field changing 60
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`times a second. The NTSC standard also set a 4:3 aspect ratio. Even though there
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`are 525 lines, the visible area is generally 480 lines high which results in an array
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`of pixels which 640 pixels wide, or 640 x 480 pixel resolution.
`
`C. Bits, Bitmaps, Pixmaps, and Graphic Images
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`62. A binary digit (“bit”) can have a value of zero (0) or one (1).
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`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.
`
`63. A bit map originally was a data structure having one bit for each
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`pixel.7 They are now referred to as Black and White (“B&W”) bitmaps or two
`
`
`7 In 1984, when the Apple Macintosh was released, it had a black and white
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`screen and its screen buffer was a true bitmap, named screenBits, in a special
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`location in main memory. “The Macintosh screen itself is one large visible bit
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`image. The upper 21,888 bytes of memory are displayed as a matrix of 175,104
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`pixels on the screen, each bit corresponding to one pixel . . . The screen is 342
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`pixels tall and 512 pixels wide.” (Exhibit 1036, Inside Macintosh, Promotional
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`Edition at 12.)
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`U.S. Patent No. 7,693,768 B2
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`color bitmaps. 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 color graphics adapter (“CGA”) a character was defined as an 8x8
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`bitmap.
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`64. 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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`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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`65. A bitmap can also be used to store a graphic image as an array of
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`color values for each point in the image. For example, the Macintosh used bitmaps
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`for icons in it Graphical User Interface (“GUI”). Further, Windows and OS/2 have
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`a bitmap file format (.BMP). JPEG, TIFF, GIF, and PNG also store bitmaps in a
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`compressed format.
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`66. 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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`U.S. Patent No. 7,693,768 B2
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`VI. OVERVIEW OF THE ’768 PATENT
`
`67. The ’768 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.” (’768 Patent, Abstract.) The ’768 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. at
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`3:5-10.)
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`68. The specification further stresses that “the present invention is
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`directed to a graphical user interface for displaying the market depth of a
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`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
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