UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`IBG LLC; INTERACTIVE BROKERS LLC;
`TRADESTATION GROUP, INC.; TRADESTATION SECURITIES, INC.;
`
`TRADES TATION TECHNOLOGIES, INC.;
`and IBFX, INC.
`
`Petitioners
`
`V.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner
`
`Case CBM2015-00182
`
`US. Patent No. 7,772,132
`
`DECLARATION OF CHRISTOPHER H. THOMAS
`
`Page 1 of 158
`
`1
`
`TRADING TECH EXHIBIT 2169
`IBG ET AL. v. TRADING TECH
`CBM2015-00182
`
`IBG 1071
`
`IBG V. TT
`
`CBM2016-00054
`
`IBG 1071
`IBG v. TT
`CBM2016-00054
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`IBG LLC; INTERACTIVE BROKERS LLC;
`TRADESTATION GROUP, INC.; TRADESTATION SECURITIES, INC.;
`
`TRADES TATION TECHNOLOGIES, INC.;
`and IBFX, INC.
`
`Petitioners
`
`V.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner
`
`Case CBM2015-00182
`
`US. Patent No. 7,772,132
`
`DECLARATION OF CHRISTOPHER H. THOMAS
`
`Page 1 of 158
`
`1
`
`TRADING TECH EXHIBIT 2169
`IBG ET AL. v. TRADING TECH
`CBM2015-00182
`
`IBG 1071
`
`IBG V. TT
`
`CBM2016-00054
`
`IBG 1071
`IBG v. TT
`CBM2016-00054
`
`
`
`
`
`Declaration Corresponding‘
`
`TT Exhibit
`
`Exhibit
`
`A
`
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`
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`
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`
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`
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`
`Page 2 of 158
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`
`Page 3 of 158
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`
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`
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`
`
`Page 4 of 158
`
`
`
`I.
`
`INTRODUCTION
`
`I, Christopher H. Thomas, declare as follows:
`
`1.
`
`I am over 18 years of age. I have personal knowledge of the facts
`
`stated in this declaration and could testify competently to them if asked to do so.
`
`2.
`
`I have been retained on behalf of Patent Owner Trading Technologies
`
`International, Inc. (“Patent Owner”) to provide expert opinions in connection with
`
`Case CBM2015-00182, regarding United States Patent No. 6,772,132 (“the ’ 132
`
`patent”). I have also been retained on behalf of Patent Owner to provide expert
`
`opinions in connection with other CBM proceedings and litigations involving the
`
`‘132 patent and other patents owned by the Patent Owner.
`
`3.
`
`I understand that a Petition was filed on September 11, 2015 seeking
`
`covered business method (“CBM”) review of claims 1 through 56 of the ’132
`
`patent, and the petition was subsequently assigned case no. CBM2015-00182.
`
`I
`
`understand that in the Petition, Petitioner alleged that the claims are unpatentable
`
`under 35 U.S.C. § 101 and also provided various grounds under 35 U.S.C. § 103.
`
`I
`
`understand that the Petitioner did not allege any grounds of anticipation. The PTO
`
`instituted CBM review, by decision dated March 3, 2016, for all claims ofthe ’132
`
`patent under § 101 and the TSE and Belden-based grounds under § 103.
`
`4.
`
`I have been asked to provide my opinion relating to an inquiry into the
`
`patentability ofclaims 1 through 56 ofthe ’132 patent under 35 U.S.C. § 103.
`
`I
`
`Page 5 of 158
`
`
`
`have also been asked to address the technological nature ofthe claims, as well as
`
`the inquiry into whether the invention solves a technical problem using a technical
`
`solution.
`
`5.
`
`I am being compensated for my time spent on this matter, including
`
`independent study, document review, analysis, and writing. My opinions stated
`
`herein are based on review and analysis of the materials obtained in connection
`
`with my work in his matter, together with my education and experience. The
`
`opinions stated herein are my own. My compensation is not contingent upon my
`
`opinions stated herein or the outcome of this proceeding.
`
`6.
`
`As will be discussed in greater detail below, it is my opinion that the
`
`invention of claims 1 through 56 ofthe ’132 patent would not have been obvious to
`
`one of ordinary skill in the art at the time of the invention. The bases for my
`
`opinions are set forth below. One basis assumes that each of the claim elements
`
`can be found in the prior art. In addition, for purposes ofthis declaration, I want to
`
`make clear that I have been asked to assume that TSE qualifies as prior art to the
`
`‘ 132 patent, even though I understand that there is a significant issue in this
`
`proceeding as to whether or not that assumption is valid. As also discussed in
`
`greater detail below, it is my opinion that the invention of claims 1 through 56 of
`
`the ‘132 patent was not obvious at the time of the invention in view of the TSE
`
`Page 6 of 158
`
`
`
`and Belden-bas ed grounds,1 as alleged by Petitioner. The claims are not obvious
`
`because TSE and Belden, whether taken alone or in the suggested combination,
`
`fail to teach the combination of elements as claimed in the independent claims of
`
`the ’132 patent.2 My opinion is supported by overwhelming real world evidence,
`
`which I will discuss below, from both before and after the time of the Patent
`
`Owner’s introduction of the commercial embodiment of the invention. This
`
`evidence supports my opinion regarding the state of mind of one of ordinary skill
`
`in the art at the relevant time. This evidence also includes substantial objective
`
`indicia (secondary considerations) of non-obviousness. Taking this body of
`
`1 The TSE and Belden-based grounds are: 1) with respect to claims 1-3, 7-10, 14-
`
`16, 20-28, 30-38, 40-48, and 50-56, alleged to be unpatentable under 35 § 103 over
`
`TSE and Belden; 2) with respect to claims 4, 11 and 17, alleged to be unpatentable
`
`under 35 U.S.C § 103 over TSE, Belden and May; and 3) with respect to claims 5,
`
`6, 12, 13, 18, 19, 29, 39, and 49, alleged to be unpatentable under 35 U.S.C§ 103
`
`over TSE, Belden, and Gutterman.
`
`2 In addition, certain dependent claims fiirther distinguish from the prior art and
`
`provide further independent bases that the invention,
`
`including the features of
`
`those dependent claims, would not have been obvious to one of ordinary skill in
`
`the art.
`
`I address some of these dependent claims as well below.
`
`Page 7 of 158
`
`
`
`evidence as a whole, including the path from the prevalent GUI tools for electronic
`
`trading before the claimed invention, to the initial skepticism of the claimed
`
`invention, to widespread acceptance and copying, as well as other factors discussed
`
`below, it is my opinion that the claimed invention ofthe ’ 132 patent was not only
`
`not obvious to one of ordinary skill in the art at the time of the invention, but also
`
`that the claimed invention rises to the rare revolutionary and pioneering status, in
`
`the technical field of GUI tools for order entry in electronic trading.
`
`7.
`
`I also note that during the original examination,3 the Examiner
`
`assumed that the prior art included a trading GUI tool with all elements of those
`
`independent claims other than “single action order entry.” Thus, the “closest art”
`
`3 The parent applications resulted in the ’132 patent and US. Patent No. 6,766, 304
`
`(“the ’304 patent”). The primary reference here, TSE, was cited and considered
`
`during reexamination proceedings involving the ‘132 and ‘304 patents. Ex. B,
`
`‘ 132 Reexam Certificate and Ex. C, ‘304 Reexam Certificate.
`
`In addition, during
`
`the reexamination proceedings, the Aurora brochure (Ex. 2053), which discloses an
`
`embodiment of Belden, was cited and considered. Id. The patent to Gutterrnan
`
`(Ex. 1011) was cited and considered during the original prosecution. The claims of
`
`the ‘132 and ‘304 patents are also related because they claim subject matter found
`
`in TT’s MD Trader product, discussed below.
`
`Page 8 of 158
`
`
`
`identified by the Examiner in that proceeding was assumed to include the other
`
`claim elements.
`
`It is also my opinion, based on my experience as one with skills
`
`higher than one of ordinary skill in the art, that the Examiner was correct in
`
`concluding that the independent claims would not have been obvious even with the
`
`above—identified assumption regarding the identified “closest art” and that the
`
`Examiner was correctin allowing the claims.
`
`I also note that the identified
`
`“closest art” is more relevant than the alleged art relied upon by the Petitioner and
`
`that the references asserted by Petitioner are further from the invention than what
`
`was already considered in examination and what has been considered in
`
`subsequent litigation.
`
`II.
`
`QUALIFICATIONS & BACKGROUND
`
`8.
`
`My curriculum vitae is attached to this report as Exhibit A. Briefly,
`
`my expertise lies in the field of the engineering, design, and development and
`
`construction of graphical user interface (“GUI”) tools for electronic trading, such
`
`as those used in electronic trade execution systems and proprietary trading
`
`systems.
`
`9.
`
`I have been actively trading on exchanges worldwide and managing
`
`portfolios of futures, commodities, stocks, and stock indexes since 1992. In 1996,
`
`I began developing trading decision and execution systems. At that time, my
`
`trading became completely reliant on the systems that Ihad developed.
`
`Page 9 of 158
`
`
`
`Ultimately,
`
`this led to my career in technology as a Chief Technology Officer
`
`(CTO) for several large trading companies and Managing Director of a large
`
`Canadian bank.
`
`10.
`
`As CTO of Emerald Market Systems in 1997, I designed and
`
`developed an intemet quote system that was used by the Chicago Mercantile
`
`Exchange to provide free quotes for certain new markets that the exchange was
`
`promoting over the intemet. The system had two versions. The first version was a
`
`HTML based quote application that provided typical last price, best bid and ask
`
`price information. The second version was a JAVA based version of the HTML
`
`quote application. Both ofthese versions were used to facilitate trading in the open
`
`outcry trading pits. In 1998, I designed and developed for a Chicago-based Futures
`
`Commission Merchant, named LFG, the flrst web browser based trade order entry
`
`system for the US. commodity markets known as “FuturesOnline.” When
`
`FuturesOnline was first released to users, there were no electronic exchanges for
`
`futures that were available to regular users who were not members of an exchange
`
`in the United States. Because ofthis, FuturesOnline was initially connected to the
`
`TOPS system at the Chicago Mercantile Exchange. This allowed traders
`
`connected Via the internet to send orders using FuturesOnline, which would be
`
`routed to the relevant trading pit at the exchange using the TOPS system.
`
`FuturesOnline also provided quotes to its traders and also allowed them to view
`
`Page 10 of 158
`
`10
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`
`
`their previous transactions, open orders, account balances, etc. Later, when
`
`GLOBEX became available to regular customers of FCMs, FuturesOnline was
`
`connected to GLOBEX as an electronic exchange destination.
`
`I was responsible
`
`for designing and pro gramming all of the graphical user interfaces (“GUIs”) and
`
`designing and implementing the database that FuturesOnline used for storing
`
`trades, orders, account balances, etc. There was another component to
`
`FuturesOnline which I developed and that was the broker version. This enabled
`
`brokers at LFG to see all of the account balances and open and closed orders for all
`
`of their clients, and it enabled the brokers to enter orders, modify existing orders,
`
`cancel orders or close out trades for any of their customer’s accounts. This was
`
`functionality that they had never had before and it greatly increased the
`
`productivity of the brokers and allowed them to have improved risk management
`
`over their customers’ trading activities. FuturesOnline was so successful that I
`
`created a white-labeled version that enabled other FCMs to use the FuturesOnline
`
`technology while it appeared to their customers that it was their own.
`
`FuturesOnline was white labeled to three FCMs, in addition to LFG’s use. In
`
`developing LF G’s FuturesOnline, I utilized Distributed Network Architecture
`
`(“DNA”) technology from Microsoft Corp. FuturesOnline was later featured on
`
`Microsoft’s website as a case study for its use ofDNA technology. A copy ofthe
`
`case study is attached as Ex. D, (Microsoft DNA Case Study). This technology
`
`Page 11 of 158
`
`11
`
`
`
`was developed for electronic trading, not for mimicking or supporting open outcry
`
`trading. As will be discussed below, in the transition away from open outcry
`
`trading, some technology was developed to mimic open outcry trading, while other
`
`technology was developed to carry out electronic trading by sending trade orders to
`
`an electronic exchange for automatic anonymous matching. FuturesOnline falls
`
`into the latter category.
`
`11.
`
`During the period from about 1992 to 2002, I was active in the trading
`
`community in a variety of roles relating to trading and/or technology for trading, as
`
`described in this declaration. By virtue ofthis experience, Iwitnessed, participated
`
`in, and am familiar with the industry’s transformation from open outcry trading
`
`pits, to early trading tools for after-hours trading (such as the Chicago Board of
`
`Trade’s Project A and the CME/Reuters GLOBEX system) and, eventually,
`
`to
`
`what we refer to today as electronic trading and its technology based trading tools.
`
`12.
`
`From late 1999 until 2002, I was the CTO for Stafford Trading, a
`
`proprietary trading company in Chicago, Illinois, USA, which was one of the
`
`largest market makers on the US. equity option exchanges. In this capacity, I
`
`managed a staff of roughly one hundred individuals and an annual technology
`
`budget in excess of fifteen million dollars. This staff included approximately 40
`
`software developers, 40 network and server engineers, and 20 support staff.
`
`During this time, I also designed a new desktop order entry system to replace a
`
`Page 12 of 158
`
`12
`
`
`
`legacy system for the traders at Stafford Trading. This system was connected to
`
`electronic exchanges and ECNs for stocks and options on stocks, and was
`
`connected to the CME GLOBEX electronic exchange for futures.
`
`I designed the
`
`GUIs for that system, which included Level 11 type quotes (this is functionally
`
`equivalent to Figure 2 in the TT patents). In April of 2000, while at Stafford
`
`Trading I became a founder and CTO of a technology company called Ragnarok
`
`Systems Inc., which was majority owned by the principals of Stafford Trading.
`
`Ragnarok Systems was a next generation online trading brokerage firm. Ragnarok
`
`Systems along with parts of Stafford Trading was acquired by Toronto Dominion
`
`Bank in March of 2002. Ragnarok Systems was also featured on Microsoft’s
`
`website as an example of large commercial usage of Microsoft’s technologies in
`
`the Financial Services industry. At Toronto Dominion Bank (“the Bank”), a large
`
`Canadian bank, after the acquisition, I served until August 2003 as a Managing
`
`Director and CTO ofthe new entity at the Bank that was named TD Options, LLC.
`
`I subsequently returned to trading as a Managing Director at TD Options LLC and
`
`continued to further develop trading systems that I had begun using several years
`
`earlier.
`
`In 2006, I started my own trading group at TD Options LLC, while still
`
`serving as a Managing Director, and actively traded a long-short portfolio of US.
`
`Equities and US. equity index futures, using the trading strategies and software
`
`tools that I developed. This trading was electronic trading. When I refer to
`
`Page 13 of 158
`
`13
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`
`
`electronic trading, Iam referring generally to a system in which traders send
`
`electronic orders to an electronic exchange, where the electronic exchange uses
`
`technology to implement an automatic matching engine (via hardware and
`
`software).
`
`13.
`
`I left TD Options LLC in October of 2008 and became a founder of a
`
`proprietary trading firm in Chicago, named Pembroke Trading LLC, specializing
`
`in algorithmic trading of futures markets.
`
`In this capacity, Iwas responsible for
`
`designing and managing the development of the user interfaces and electronic
`
`trading platforms and infrastructure for testing and executing trading strategies in
`
`live markets.
`
`14.
`
`In May of 201 l, I started my own proprietary trading firm,
`
`Maridunum Capital, L.L.C., which specializes in automated algorithmic trading of
`
`Futures Markets. In this capacity, I was responsible for designing all trading
`
`software and algorithms for the company. Additionally, I was responsible for
`
`programming portions ofthe software.
`
`15.
`
`In May of2016, I became a founder ofa software company named
`
`Primal Quant LLC, which will provide trading strategy design and testing tools to
`
`online traders without the need for the trader to have programming experience or
`
`knowledge. At Primal Quant I am responsible for all GUI and database designs, as
`
`well as managing a team of software engineers.
`
`Page 14 of 158
`
`14
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`
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`16.
`
`I am not a professional expert witness. My professionis the
`
`development of technology for trading and trading. My experience as an expert is
`
`limited to the subject matter ofthe TT patents, and I was hired more than 9 years
`
`ago in that role because of my relevant experience in the trading industry,
`
`including open outcry, electronic trading, and the development of technolo gy for
`
`use in electronic trading. Prior to that, Ihad never testified as an expert witness in
`
`any matter. In sum, before getting involved as an expert, I had widespread
`
`exposure and personal knowledge as to the state of the art at time of invention, as
`
`well as before and after the time of the invention. Through my experience with the
`
`litigation, I was exposed to additional items of information. Coupled with my
`
`personal experience in the industry, I have therefore gained extensive knowledge
`
`of the art.
`
`III.
`
`INFORMATION CONSIDERED
`
`17.
`
`I am familiar with the ‘ 132 patent through my work on litigations
`
`involving the ‘132 patent (as well as other TT patents). I am familiar with its
`
`prosecution history, including parent/provisional applications. Iam familiar with
`
`all of the CBM materials in the above-captioned matter including the Petition and
`
`supporting exhibits and declarations, the patent owner’s preliminary response, and
`
`the Board’s institution decision.
`
`18. With respect to the litigations involving the ’132 patent, I am familiar
`
`Page 15 of 158
`
`15
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`
`
`with proceedings before the United States District Courts and the United States
`
`Court of Appeals for the Federal Circuit involving the ‘ 132 patent and related
`
`patents (e.g., US. Patent Nos. 6,766,304, which shares a common specification
`
`with the ’132 patent). Those proceedings involved entities that participated in a
`
`Joint Defense Group with Petitioners and joined together to conducta worldwide
`
`hunt for prior art. Ex. E, TT0703980 at p. 16. As a result of my involvement
`
`in
`
`these court proceedings, I have been exposed to the large amount of alleged prior
`
`art that has been presented by the parties in the related litigations over the past ten
`
`years. Many, many documents relating to alleged prior art were produced by the
`
`defendants, members of the Joint Defense Group, and other third parties. In
`
`connection with the court proceedings, there were many dozens of depositions
`
`seeking information on the state of the art and the invention,
`
`including a number of
`
`depositions of third party individuals who executed declarations regarding the
`
`uniqueness and benefits to the user and the industry of the commercial
`
`embodiment of the claimed inventiOn.
`
`In addition, there were party contentions
`
`and expert reports relating to the validity of the patents. There were summary
`
`judgment filings relating to validity and declarations in support of such filings.
`
`The defendants in the court proceedings also took depositions of third parties that
`
`entered into license agreements and/or settlements with TT and a number of third
`
`party individuals who executed declarations regarding the uniqueness and benefits
`
`Page 16 of 158
`
`16
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`
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`to the user and the industry of the commercial embodiment ofthe claimed
`
`invention. Prior to trial, the parties served expert reports and contentions. In the
`
`eSpeed case and the CQG case, I testified at trial, as did a number of other experts
`
`for the parties. Voluminous material relating to the validity of the patents was
`
`developed. Because of my own experience in the industry, my review of the file
`
`history, and my experience in these court proceedings, I have a thorough
`
`understanding of the state of the art at the time of the invention, and before and
`
`after the time of the invention.
`
`19.
`
`In the district court proceedings, I became familiar with the TSE
`
`reference that has been presented in this proceeding, as well as other TSE
`
`documents and the 2005 deposition of a TSE representative (Mr. Kawashima), who
`
`was recently deposed again. I have considered both deposition transcripts. For
`
`purposes ofclarity, I will use the shorthand “TSE” to refer to the reference relied
`
`upon in this proceeding. TSE was first raised in the court proceedings more than
`
`ten years ago. In October of 2007, a jury determined that, among other things,
`
`TSE did not render the ’132 patent and the related ’304 patent unpatentable and
`
`that TSE did not qualify as prior art. The district court agreed, and these findings
`
`were not appealed.
`
`I am also familiar with the prosecution of the ’132, and ’304
`
`patents at the PTO, including reexamination proceedings, in which the claims of
`
`the ’132 and ’304 patents were upheld, including over TSE, Belden’s system as
`
`Page 17 of 158
`
`17
`
`
`
`described in the “Aurora” brochure, and Gutterrnan. As such, the alleged prior art
`
`asserted by Petitioners in this proceeding is either less pertinent or, at best for
`
`Petitioners, cumulative to the alleged prior art references that were considered by
`
`the PTO, either in the original prosecution or in the reexamination proceedings. In
`
`addition, as noted in the Other Publications section of the Reexamination
`
`Certificate confirming patentability of the ‘ 132 patent’s claims, a number of TSE
`
`related documents (including translations) were cited references and therefore were
`
`considered during prosecution. Ex. 1001 at p. 2.
`
`20.
`
`In addition, I have personal experience with a wide variety of
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`technologies for electronic trading (as referenced above in background) and, over
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`the course of my professional involvement in trading, have seen numerous GUI
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`tools for electronic trading. Throughout my professional trading career, I have
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`made an effort to stay current and when possible ahead ofthe curve, on
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`technologies for trading, including investigating new technology offerings,
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`attending trade shows, and receiving sales pitches from trading technology
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`vendors, as well as developing technology myself.
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`I also have colleagues in the
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`industry, some of whom would be considered one of ordinary skill in the art, and
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`some of whom I would consider to be of significantly higher levels of skill.
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`Because of my roles in the industry, from a time significantly before the invention
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`until well thereafter, Iwas working and speaking on a regular basis with these
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`colleagues and the traders themselves about technology for trading in general, and
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`GUI tools in particular, and their needs, desires, frustrations and challenges with
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`the technology available at the time. These experiences further inform my
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`opinions from the perspective of one of ordinary skill in the art.
`
`21.
`
`In addition to the above, I have personally traded on electronic
`
`exchanges using Trading Technologies’s (“TT’s”) products, including MD Trader,
`
`which is the commercial embodiment of the inventions described for example in
`
`the ’ 132 patent. In addition, I have spoken with numerous users of MD Trader and
`
`other experts in the field about MD Trader and how it functions.
`
`IV.
`
`PERSON OF ORDINARY SKILL IN THE ART
`
`22.
`
`The technology at issue in this proceeding is a graphical user interface
`
`(“GUI”) tool for trading.
`
`In general, the term GUI refers to a human-machine
`
`interface that allows users to interact with the machine by utilizing graphical
`
`elements, as opposed to, for example, text-based interfaces. Text-based interfaces
`
`typically required the user to type commands on a keyboard. With a GUI tool, the
`
`user may interact with the graphical elements on a display, such as by using a
`
`keyboard, a mouse, a stylus, a finger, or other pointing device. GUI tools are
`
`constructed using a combination of software and hardware elements.
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`In addition to
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`desktop and laptop computers, GUI tools are used in a wide variety of handheld
`
`devices. GUIs are also sometimes referred to as MMIs (man-machine interfaces) or
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`Page 19 of 158
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`HCIs (human-computer interfaces). These GUIs are analogous to physical devices
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`because, like physical devices, they are designed to permit a user to interact with a
`
`machine. For example, in older airplanes, the cockpit utilizes physical buttons,
`
`levers or switches to controlthe operation of the airplane. In modern day aircraft,
`
`the cockpit utilizes GUIs that enable the pilot to controlthe operation of the
`
`airplane. As another example, old calculators have push buttons that enable the
`
`user to enter values or operations, whereas today’s smartphones utilize, for
`
`example, a GUI that enables the user to enter the same values or operations.
`
`23.
`
`GUI tools like the invention of the ’ 132 patent are typically deve10ped
`
`for and used by professionals, particularly at the time of the invention. Thus, in
`
`addition to providing desirable functionality,
`
`these GUI tools must be highly stable
`
`and reliable.
`
`In my experience, GUI tools for trading are extensively tested,
`
`including testing in all kinds of simulated market conditions, well in advance of
`
`any use in a live market. As discussed below, GUI tools are mission critical for
`
`professional electronic traders. They are the primary tools of their trade, just like
`
`GUIs in a cockpit are the primary tools for pilots flying modern day aircraft.
`
`24.
`
`In the course of my industry experience, I have hired people to do
`
`GUI tool development for electronic trading. Backgrounds included previous
`
`experience in software development, technical degrees in computer science,
`
`engineering or other science disciplines, or equivalent work experience, etc.
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`Page 20 of 158
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`25.
`
`In my opinion, one of ordinary skill in the art for purposes of this
`
`proceeding is a person having (1) a bachelor's degree or equivalent experience and
`
`(2) two years of experience designing and/or programming graphical user
`
`interfaces, including experience designing and/or programming graphical user
`
`interfaces for electronic trading based on input from a person with knowledge of
`
`the needs of an electronic trader.
`
`I have a greater level of skill, but I can speak
`
`about what one of ordinary skill in the art would understand because of my
`
`background and experience.
`
`26.
`
`I have reviewed Mr. Roman and Mr. Rho’s definition of one of
`
`ordinary skill (submitted with the Petition) andI disagree with it for at least the
`
`reason that it does not provide sufficient weight to the experience designing and/or
`
`programming GUIs for electronic trading based on input from a person with
`
`knowledge of the needs of an electronic trader. Mr. Roman and Mr. Rho’s
`
`definition instead focuses primarily on GUI experience, with no access to or
`
`knowledge of the needs of an electronic trader, which is plainly deficient. They
`
`suggest that merely direct or indirect experience with trading or related systems is
`
`adequate. This is incorrect because it ignores the needs of the trader for whom the
`
`GUI is designed, and further illustrates why their opinions regarding obviousness
`
`are incorrect. In addition, Idisagree with their assertion that the person of ordinary
`
`skill would need a bachelor’s degree or higher in computer science or computer
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`Page 21 of 158
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`engineering. Based on my experience in the industry for over 20 years, I believe
`
`that this requirement is too restrictive, again skewing the View of the person of
`
`ordinary skill toward a generalized GUI designer and away from the recited field.
`
`27. My definition ofthe person of ordinary skill in the art is that of a
`
`baseline worker in this industry. Many individuals in the industry, as one would
`
`expect, have a significantly higher level of skill. My level of skill in the art is
`
`significantly higher than that ofthe person of ordinary skill, and my level of skill
`
`was attained through my numerous relevant work experiences, including trading
`
`experience, self—taught programming proficiencies, as well as experiences in
`
`designing, developing and implementing electronic trading systems.
`
`V.
`
`CLAIM CONSTRUCTION
`
`A.
`
`“ Static”
`
`28.
`
`The term “static” has been construed by the United States Court of
`
`Appeals for the Federal Circuit as _. This construction comports with the
`
`broadest reasonable interpretation.
`
`Indeed, it would be unreasonable to adopt any
`
`construction that would be broader in scopethan the Federal Circuit’s construction,
`
`which is based on the intrinsic evidence.
`
`B.
`
`“order entry region”
`
`29.
`
`The patent describes and claims an “order entry region” that is
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`“aligned with the static display ofprices” and includes “areas for receiving
`
`commands
`
`each area correspondingto a price ofthe static display of prices.”
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`Page 22 of 158
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`This term has a broadest reasonable interpretation that is consistent with its plain
`
`and ordinary meaning: a region for entering orders, where the region includes
`
`areas for receiving commands and each area in the order entry region corresponds
`
`to a price in the static price display.
`
`C.
`
`“selecting a particular area in the order entry region through a
`single action of the userinput device... to seta plurality of
`additional parameters for the trade order and send the trade
`order to the electronic exchange”
`
`30.
`
`In my opinion, the single action must occurin a location
`
`corresponding to a price level along the static display of prices and the single
`
`action must set two or more additional parameters and send the trade order
`
`message to an electronic exchange. In other words, the single action that both sets
`
`additional parameters (for example, price and type of order) and sends a trade
`
`order message must occur at a particular location in the order entry region. This
`
`element requires input from a user input device to select a particular location.
`
`D.
`
`“displaying working orders in alignment”/”entered orders”
`
`31.
`
`One of ordinary skill in the art would readily recognize that the
`
`working order indicator must indicate to the user that the user has an order at a
`
`particular price level along the static display of prices. EX. 1001 at 7:55-82. One
`
`of ordinary skill in the art would likewise understand the claimed “entered orders,”
`
`which are dynamically displayed in alignment with their corresponding prices
`
`along the static price display, represent the quantity (portion) ofthe user’s trader
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`Page 23 of 158
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`order that has been filled at the corresponding price.
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`E.
`
`“Re-Centering Instruction”
`
`32. A “re-centering instruction” is a command by a user to re-center the
`
`static display of prices so that the inside market is in the middle of the display.
`
`VI. BACKGROUND OF THE INDUSTRY
`
`33.
`
`To understand the claimed invention and its non-obviousness, it is
`
`important to have an understanding ofthe nature of the industry in which it was
`
`developed and the mission critical nature of tools used for electronic trading. The
`
`electronic trading industry is made up of various participants. These participants
`
`include the exchanges, Futures Commissions Merchants (“FCMs”) (the equivalent
`
`of equity brokers for futures), technology providers, such as Independent Software
`
`Vendors (“ISVs”) whose primary business is to provide GUI tools, trading firms,
`
`brokers and individual traders. All of the participants identified above provide
`
`complimentary services and work together to facilitate the execution of trades. TT
`
`is an example of an ISV. Examples of more well-diversified vendors include CQG
`
`and Bloomberg. Examples of an FCM include RCG and Goldman Sachs.
`
`Examples of an exchange include the CME, Eurex and the Tokyo Stock Exchange
`
`(“TSE”). A broker is generally speaking someone who, typically for a fee, executes
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`buy and sell orders on behalf of another. An FCM is an entity that facilitates the
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`buying and selling of filtures contracts and typically holds monetary funds as
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`Page 24 of 158
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`margin for trading activities. An exchange is a marketplace in which things of
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`value are traded, suchas securities, options, futures etc.
`
`34.
`
`TradeStation Group, Inc. is the parent company of TradeStation
`
`Technologies, Inc., a trading technology company, and TradeStation Securities,
`
`Inc., an online secu
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