UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`IBG LLC,
`INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`
`Petitioners,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`
`Patent Owner
`
`
`
`CBM2016-00087
`Patent No. 7,412,416 B2
`
`
`
`DECLARATION OF ERIC J. GOULD BEAR
`IN SUPPORT OF PATENT OWNER’S RESPONSE
`
`
`
`
`
`
`
`
`Page 1 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`IBG LLC,
`INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`
`Petitioners,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`
`Patent Owner
`
`
`
`CBM2016-00087
`Patent No. 7,412,416 B2
`
`
`
`DECLARATION OF ERIC J. GOULD BEAR
`IN SUPPORT OF PATENT OWNER’S RESPONSE
`
`
`
`
`
`
`
`
`Page 1 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`
`
`TABLE OF CONTENTS
`
`
`
`
`VI.
`
`INTRODUCTION .............................................................................................................. 3
`I.
`SUMMARY OF CONCLUSIONS ..................................................................................... 3
`II.
`BACKGROUND AND QUALIFICATIONS .................................................................... 4
`III.
`IV. MATERIALS REVIEWED .............................................................................................. 10
`V.
`GRAPHICAL USER INTERFACE TECHNOLOGY ..................................................... 10
`A.
`Inventions Necessarily Improve Existing Technologies ....................................... 10
`B.
`The Science of Human-Computer Interaction ...................................................... 11
`C.
`GUIs Often Solve Technical Problems. ................................................................ 16
`D.
`Computer-Readable Medium Claims are Not Directed at Propagated Signals. ... 22
`CONCLUSION ................................................................................................................. 23
`
`
`
`EXHIBIT 1: BEAR CV
`EXHIBIT 2: TUFTE VISUAL AND STATISTICAL THINKING
`EXHIBIT 3: MACKENZIE AND BUXTON ON FITTS’ LAW
`
`
`
`2
`
`Page 2 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`I.
`
`INTRODUCTION
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`
`1.
`
`I have been retained by Trading Technologies International, Inc. (“TT”
`
`or “Patent Owner”), in this action. My credentials are described in my CV, which
`
`is attached hereto as Exhibit 1. I offer this report on the technology at issue in U.S.
`
`Patent No. 7,412,416 B2 (the “’416 Patent”) in response to the Covered Business
`
`Patent Review matter CBM2016-00087 instituted and filed by IBG LLC, Interactive
`
`Brokers LLC, (“IB”) TradeStation Group, Inc. and TradeStation Securities, Inc.
`
`(“TS”, “TradeStation”) (collectively “Petitioners”).
`
`2.
`
`I have been asked by TT’s counsel to explain whether and how
`
`graphical user interface design and development is technology and whether the
`
`graphical user interface inventions claimed in the ’416 Patent are technical solutions
`
`to technical problems. Further, I have been asked to assess whether the claims read
`
`on all ways of displaying and updating market information and placing a trade order.
`
`I am being compensated at the rate of $480 per hour. My compensation is not
`
`related to the outcome of this case.
`
`II.
`
`SUMMARY OF CONCLUSIONS
`
`3.
`
`As a result of performing the analysis described herein and measured
`
`against the standards outlined below in Section V, I have determined that, in my
`
`opinion, the ’416 Patent claims a new and improved graphical user interface. Herein,
`
`I explain how graphical user interfaces are technologies for human interaction
`
`3
`
`Page 3 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`designed and purpose-built to address problems of speed, accuracy, efficiency and
`
`usability – all technical problems. Since graphical user interfaces are inherently
`
`technology, improvements to graphical user interfaces are necessarily directed to
`
`technology; solving
`
`technical problems with
`
`technical solutions.
`
` Such
`
`improvements are not directed to a business method or practice. And since they
`
`explicitly improve upon known computer technologies, they are neither merely
`
`implemented using known computer technology nor directed to routine and
`
`conventional computing components or steps. My opinion is supported by the
`
`evidence in the patent specification, figures and claims.
`
`III. BACKGROUND AND QUALIFICATIONS
`
`4.
`
`I am the first named inventor on at least 80 United States patent
`
`applications that list me as an inventor. These are cataloged in my CV. To date, at
`
`least 70 of those applications have issued as U.S. patents. I am also the first named
`
`inventor on a number of international patents and patent applications.1
`
`5.
`
`Inventions of mine for which patents have been issued include virtual
`
`force-feedback user interfaces, methods of navigating poly-hierarchical information,
`
`
`1 Some of my patents and applications identify me as “Gould” while others identify
`me as “Bear” because I legally changed my name from Eric Justin Gould to Eric
`Justin Gould Bear after adopting my first child from China in 1999.
`
`
`4
`
`Page 4 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`management of playlists that include both owned and un-owned songs, real-time
`
`communications architectures, auxiliary visual displays for personal computers,
`
`auxiliary processing by sleeping computing devices, methods for reducing parallax
`
`in computer camera systems, methods for using telephony controls on personal
`
`computers, methods for navigating content using media transport controls, and
`
`methods for unifying audio control on personal computers. More recent applications
`
`claim inventions relating to symbolic and schematic displays of protocol-specific
`
`information, user interfaces for visualizing data backup and recovery, and handheld
`
`multi-channel interactive environments.
`
`6.
`
`By the time I was 12, I was programming computers in BASIC using
`
`Tandy TRS-80 and Apple personal computers. In 1984, I formed Element Systems
`
`to provide a consulting framework for my interface design and code production
`
`skills. From 1984 to 1993, I designed and engineered software for clients in utilizing
`
`a variety of coding languages, including BASIC, Pascal, C, C++, 68000 Assembly
`
`Language and HyperCard / SuperCard. Clients included Aetna Life Insurance,
`
`Kaleida Labs (an Apple/IBM joint venture) and SoftWriters, for whom I wrote code
`
`to perform network administration of remote computer systems in 1991. Other
`
`clients are listed in my CV.
`
`7.
`
`In 1986, two years after Apple released the Macintosh computer, I
`
`became an Apple Certified Developer.
`
`5
`
`Page 5 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`In 1988 and 1989, I designed and developed a significant portion of the
`
`8.
`
`code for Aetna Life Insurance's first graphical user interface. The transformation of
`
`Aetna's financial information system from a command line terminal to a modern
`
`point and click Macintosh application (e.g. with mouse, radio buttons, check boxes
`
`and clickable text entry fields) marked my first experience leading groups of
`
`engineers in the design of a multi-million dollar user experience (“UX”) program.
`
`9.
`
`In 1991, I received a Bachelor of Arts from Wesleyan University in
`
`Cognitive Science, an interdisciplinary degree that combined the studies of
`
`Psychology, Philosophy, Linguistics and Computer Science. Example coursework
`
`included biological neurophysiology, artificial intelligence programming in LISP
`
`and research in human perception of audio/visual phenomena as presented and
`
`measured by computing machines. The Psychology Department at Wesleyan was
`
`also a client, for whom I designed and engineered test tools in Lightspeed Pascal and
`
`SuperCard for millisecond timing of visual search tasks in perception experiments.
`
`10.
`
`In the summer of 1992, I interned at Apple, Inc. (then Apple Computer,
`
`Inc.) in the Advanced Technology Group’s Human Interface Group where I worked
`
`on designing and programming user interfaces for an auditory-only display device.
`
`I joined ACM and SigCHI (Special interest group on Computer Human Interaction)
`
`at that time and am now a lifetime member. I am also a lifetime member of CPSR
`
`(Computer Professionals for Social Responsibility), which I joined in 1992.
`
`6
`
`Page 6 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`In 1993, I received a Masters of Professional Studies in Interactive
`
`11.
`
`Telecommunications from New York University’s Tisch School of the Arts. On full
`
`scholarship, I designed and engineered various hardware, software and interactive
`
`video experiences. New York University (with Bell Atlantic) was one of my clients
`
`in 1992, for which I developed software to decode telephone touch-tones. This code
`
`enabled Manhattan Cable TV viewers to control 3D graphical environments on
`
`broadcast television in real-time using their telephone handsets.
`
`12. From 1994 to 1999, I held faculty positions at San Francisco State
`
`University (Multimedia Studies Program) and The University of Texas at Austin
`
`(Department of Radio-TV-Film). I taught graduate and undergraduate courses in
`
`multimedia design as well as advanced interaction and interface design, including
`
`mentoring students in the development of experimental hardware/software UX.
`
`During this same period, I wrote the user interface design column for InterActivity
`
`Magazine. A list of these articles and other publications is included in my CV.
`
`13.
`
`I have also presented papers and given talks regularly on topics relating
`
`to inventorship, UX design and interactive media. I have made presentations at
`
`conferences of ACM SigCHI, SXSW, the International Consumer Electronics Show
`
`(CES), Digital Hollywood and the TV of Tomorrow Show. I have also served as an
`
`independent judge of conference paper submissions and regularly serve on the
`
`SXSW Advisory Board. A list of my presentations and talks is provided in my CV.
`
`7
`
`Page 7 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`I founded MONKEYmedia in San Francisco in 1994 to provide the
`
`14.
`
`desktop computing, new media and consumer electronics industries a design and
`
`technology resource focused specifically on human-computer interaction. Clients
`
`included Interval Research Corporation, Texas Instruments, Sega of America,
`
`Sprint, Viacom, Microsoft / WebTV. MONKEYmedia earned industry recognition
`
`for my work, including a CLIO, an Award of Excellence from Communication Arts,
`
`Best Use of Audio at South by Southwest (SXSW) and other awards.
`
`15. From 2001 through 2005, I held executive leadership positions at
`
`Microsoft Corporation and Yahoo! Inc. At each company, I directed teams of
`
`interaction designers, visual designers, user researchers, ethnographers and
`
`prototype engineers responsible for crafting the UX of various product lines. These
`
`programs included Windows Tablet PC Edition, the Windows Hardware Innovation
`
`Group, Yahoo! Mail, Yahoo! Messenger, Yahoo! Photos, Yahoo! Personals,
`
`Yahoo!/SBC (now AT&T) set-top experience and Yahoo! Mobile applications.
`
`Descriptions of my work for those corporations are detailed in my CV.
`
`16. Beginning in 2005, I have provided executive consulting services in
`
`corporate user experience strategy and design innovation through Chief Experience
`
`Officer, Inc. In this capacity, I have lead the UX strategy and design of computer
`
`mice, universal remote controls, mobile phones, stock trading applications, legal
`
`research tools, home automation systems and medical devices for companies
`
`8
`
`Page 8 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`including Logitech, Tektronix, Motorola, Charles Schwab, Thomson Reuters and
`
`others mentioned in my CV. My work on Logitech’s premium mice and remote
`
`controls contributed to winning a number of industry awards, including multiple
`
`2007 CES Technology & Innovation Awards, a 2008 CES Best of Innovations
`
`Award, a 2009 CES Best of Innovations Category Winner Award, and a 2010 CES
`
`Innovations Award.
`
`17. Of particular relevance to this matter is my work on Charles Schwab’s
`
`active stock trading application “Street Smart Edge.” On the project, I led a team of
`
`user interface and interaction designers in studying trader habits and usability
`
`challenges and writing functional and technical specifications for Charles Schwab’s
`
`engineering team to implement that addressed those usability challenges.
`
`18.
`
`In 2012, I designed and wrote an iPad application entitled Walk-in
`
`Theater in collaboration with videographer Rachel Strickland and musician Jim
`
`McKee. Walk-in Theater is an experiment with peripatetic perspective, engaging
`
`participants' proprioceptors and spatial memory to orient them as they navigate
`
`among multiple video streams in a 3D sound field.
`
`19.
`
`In 2013, I joined Austin’s Capital Factory start-up incubator as a partner
`
`and angel investor, where I serve as an advisor to executives in intellectual property
`
`strategy and the design and development of new hardware, software and services. I
`
`am currently employed by CURB, Inc. – an early-stage startup that manufactures
`
`9
`
`Page 9 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`energy monitoring and control systems – as its Chief Experience Officer.
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`
`20. My experience designing and evaluating user interfaces over the last
`
`25+ years, including the optimization of human performance through the use of
`
`computing technology and automated feedback of various forms and modalities, as
`
`well as my background hiring and managing teams of user experience professionals,
`
`position me as an expert in the design and development of graphical user interfaces.
`
`IV. MATERIALS REVIEWED
`
`21.
`
`In performing my analysis, I have reviewed, among other things, the
`
`‘416 patent, Judge Coleman’s opinion in the related CQG proceedings (05-cv-4811)
`
`holding that TT’s ’132 and ’304 Patents are patent eligible, the Federal Circuit
`
`opinion affirming Judge Coleman’s opinion and the patent eligibility of the ’132 and
`
`’304 patents, portions of declarations by Kendyl A. Román in support of the petition
`
`for CBM review of the ’416 Patent, the petition for CBM review, and the PTAB’s
`
`decision to institute the corresponding CBM review.
`
`V. GRAPHICAL USER INTERFACE TECHNOLOGY
`
`A. Inventions Necessarily Improve Existing Technologies
`
`22. No new technology can exist in a vacuum wholly disconnected from
`
`the past. Whether built using metal, wood, plastic or pixels on a computer screen,
`
`all innovations must – to some extent – be made from a combination of known
`
`10
`
`Page 10 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`components. Pixels are building block materials used to construct software
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`
`interfaces just like plastic is a building block material used to construct hardware
`
`controls. Whether any given combination is obvious and unanticipated is a
`
`reasonable question to be raised, but it is my understanding that the present CBM
`
`review is not concerned with either anticipation or obviousness issues. I have not
`
`studied the prior art at length and do not have an opinion at this time with regards to
`
`§102 and §103 validity.
`
`23. There are myriad user interface visualization and interaction techniques
`
`known to be employable when creating new user experiences. The existence of these
`
`techniques, aka technologies, is akin to the existence of raw physical building
`
`materials. Just like building a house, certain technologies lend themselves to certain
`
`types of use. Similarly, certain technologies draw designers of software systems into
`
`using them in particular combinations. Simply knowing that various technologies
`
`exist that can be used for a variety of purposes is not enough to motivate, inspire or
`
`enable someone to combine such techniques in new ways. Nonetheless, I believe it
`
`important to establish that human-computer perception and/or human-computer
`
`interaction innovations should not be treated differently from innovations based on
`
`physical technologies not built using software toolkits.
`
`B. The Science of Human-Computer Interaction
`
`24.
`
`I have been asked to opine about the field of the invention of the ’416
`
`11
`
`Page 11 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`Patent, which is the science of human-computer interaction (“HCI”), also known as
`
`user experience (“UX”) design, as applied in the field of GUIs for electronic trading.
`
`25. The discipline of user experience grew out of ergonomics and what was
`
`once called man-machine interface (“MMI”). It is generally concerned with how to
`
`make machines reliably responsive to human expression while being easy to use and
`
`unobtrusive. The user interface (“UI”) or graphical user interface (“GUI”) is the
`
`boundary or bridge between a person and a machine. It includes the physical
`
`hardware and logical software, capturing concrete measurable human input and
`
`outputting processed information for human perception. To be clear, the invention
`
`neither claims nor improves the underlying process of trading, but rather offers a
`
`better GUI for human interaction within the existing trading model. In other words,
`
`trading, itself, is not at issue; but specific display and interaction techniques for
`
`trading with speed, accuracy and a minimum of error are at issue.
`
`26. Various other terms have been used over the past decades of the
`
`development of the science as it has matured. Technical aspects of the science
`
`include human
`
`factors engineering
`
`(“HFE”), ergonomics, ergonometrics,
`
`biomechanics, industrial design, cognitive engineering, user research, design
`
`research, usability engineering, user-centered design (“UCD”),
`
`interaction
`
`engineering, interaction design (“IxD”), information architecture (“IA”), and
`
`product design.
`
`12
`
`Page 12 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`27. Don Norman is generally recognized as a “founding father” of the
`
`modern UX discipline. He is a former VP and User Experience Architect at Apple
`
`Inc. and a professor of Cognitive Science and Psychology at UCSD. He taught
`
`practitioners in the industry many core concepts. Of note and of particular relevance
`
`to the ’416 Patent are: (1) affordances, which define what is possible for people to
`
`do at any given time; and (2) feedback, which let people know what can be done,
`
`what they are doing or what they just did. How specific affordances and feedback
`
`are designed and engineered depends heavily on the circumstances of use, and there
`
`is an international community of user experience professionals that have been
`
`meeting and settings standards for over 30 years. The Association of Computing
`
`Machines’ special interest group on computer human interaction (SigCHI), has been
`
`hosting the premier international conference on human factors in computing systems
`
`since 1982. And the International Standards Organization (ISO) has adopted
`
`standards in “ergonomic principles in the design of work systems” that date back to
`
`1981 (ISO 6485:1981) and standards in “human-centered design processes for
`
`interactive systems” (ISO 13407:1999E) dating to the time of invention of the ’416
`
`Patent (i.e., 1999). These standards were developed because the design of a GUI is
`
`analogous to the crafting of a physical workspace or cockpit – and incorporates many
`
`of the same human factors engineering variables, such as reachability, readability,
`
`glance-ability, performance, speed, and risk of error. These standards may be used
`
`13
`
`Page 13 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`to create new and innovative GUIs that are broadly used and adapted.
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`
`28. By the time of invention of the ’416 Patent, many corporations had
`
`established a track record of investing heavily into user experience research and
`
`design to craft and improve the engineering of their own products and the industry’s
`
`technical competency, generally. A few entities recognized for t heir technical
`
`contributions to the field in the late 1990s include Xerox PARC, Apple, IBM,
`
`Microsoft, Philips, Sony, AT&T, HP, SAP, SunSoft, Intel, Disney and the National
`
`Science Foundation. By the time of the invention, there were many leading
`
`universities with advanced degrees in one or more UX disciplines. Notable
`
`programs turning out graduates who made a significant inventive impact on the field
`
`by the late 1990s included those at Stanford, M.I.T., Carnegie Mellon, N.Y.U.,
`
`University of Maryland, University of Toronto, University of Michigan, UCSD,
`
`SFSU, Georgia Tech, George Washington University, Bowling Green, Delft
`
`University and the Royal College of Art.
`
`29.
`
`I have been informed that Petitioners’ expert Kendyl A. Román has
`
`previously opined that a college education is not needed to design user interfaces.
`
`This may be true of the design of casual user interfaces, such as simplistic websites,
`
`but not the design of mission critical applications. Commodities trading is high
`
`stakes and requires a trained and nuanced understanding of human factors variables
`
`to interpret the complexity of usability issues and appreciate the value of technical
`
`14
`
`Page 14 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`solutions to specific perception and interaction behavior challenges. This is
`
`especially true of professional derivatives traders that conduct such trading for their
`
`profession. Many well -funded entities – including software providers, stock
`
`exchanges, brokers, futures commission merchants (FCMs) and trading groups –
`
`knew the value of technically sophisticated user interface experts and invested
`
`heavily in GUI technology development as part of their efforts to innovate in the
`
`space.
`
`30. The user experience success metrics used today are the same as they
`
`were at the time of invention of the ’416 Patent. Great user experiences occur to
`
`end-users as simple and easy to use, quick and efficient, seamless and effortless.
`
`Getting the user experience right is also essential for mission critical tasks, where
`
`people’s lives or life savings are at stake. A suboptimal GUI can contribute to
`
`mistakes that cause irreversible damage (e.g. losses of life, losses of wealth,
`
`destruction of property).
`
`31. But to accomplish excellent results depends on the science of user
`
`experience design. There are three general domains of design involved in crafting
`
`user experiences: information design, interaction design, and interface design.
`
`Information design is about the specific techniques for organizing content.
`
`Interaction design is about what people functionally do with their bodies and their
`
`hands, such as hovering over a cell and clicking a mouse button. And interface
`
`15
`
`Page 15 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`design proper is about the sensory aspects of the experience. How are things
`
`technically changing on screen? How do people know what they can do? How do
`
`they know what they are doing and what they just did?
`
`32. Due to the complexities and nuances technical design of GUIs,
`
`following a scientific method is necessary to invent successful GUIs that ultimately
`
`appear to end users as magically intuitive and, thus, at risk of feeling obvious in
`
`hindsight. This process normally involves: (a) listening to users and understanding
`
`their technical needs, (b) inventing and designing novel technical solutions, (c)
`
`validating the efficacy of those novel technical solutions through usability testing,
`
`(d)
`
`iteratively refining
`
`those novel
`
`technical solutions, and (e) clearly
`
`communicating to engineers the specific technical details of the resultant visual
`
`interfaces and human-computer interaction techniques so they can be accurately
`
`constructed to operate as designed. Using such well-weathered objective methods
`
`is what makes interactions between people and machines predictable, measureable
`
`and reproducible.
`
`C. GUIs Often Solve Technical Problems.
`
`33. Graphical user interfaces often solve technical problems, such as
`
`problems of speed, precision, and usability with prior GUI tools. These are classic
`
`technical problems. Solving an additional business problem does not negate the
`
`solution of technological problems. All innovative tools that solve technical
`
`16
`
`Page 16 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`problems also solve problems in their field of use. For example, a flight instrument
`
`embodied in a GUI can address both a technical problem (usability) and a problem
`
`in its field (flight safety). The problems of speed, accuracy, and usability and their
`
`solutions are necessarily rooted in computer technology and the operation of prior
`
`art GUIs, not in a business practice.
`
`34. Reducing task time is a technical challenge well established in the field
`
`of user interface and interaction design. It is also a well-established technical
`
`problem in the field of physical devices and man machine interfaces. Also,
`
`increasing task accuracy is a technical challenge well established in the field of user
`
`interface and interaction design – in both hardware and software realms. As in the
`
`physical world, motivations to solve such technical challenges generally do not yield
`
`obvious solutions, and that even the most intellectually logical solutions do not
`
`necessarily correlate with the most intuitive or efficacious solutions. For that reason,
`
`the science of user experience depends heavily on usability research and real-world
`
`validation testing to ascertain technical efficacy and to direct designers back to the
`
`drawing board to craft better performing and frequently novel and non-obvious
`
`solutions.
`
`35. The design of dynamic visual displays and the human-computer
`
`interactions dictated by the specific technical aspects of said visual displays is a well-
`
`established science with a rich history, requiring a nuanced appreciation of human
`
`17
`
`Page 17 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`performance variables and technical design characteristics to afford implementation
`
`excellence. Furthermore, such nuance often depends on the field of application,
`
`especially when it comes to mission critical activities.
`
`36.
`
`It is my understanding that the Petitioners argue that employment of
`
`known structures in any makeup cannot create new functionality. This position is
`
`nonsensical in the context of software applications. Changing the makeup of known
`
`GUI elements (structures) on a computer screen often dictates a dramatic change in
`
`the functionality of the GUI. And because the makeup of any set of user interface
`
`structures – whether involving numerical display regions, lists, cells, graphical
`
`buttons, or what have you – establishes the specific meaning and technical
`
`capabilities of that user interface, this cannot, by definition, avoid being deemed
`
`technology.
`
`37. For the avoidance of doubt about the technical nature of visual design,
`
`itself, it is worth calling attention to the canonical works of visualization expert,
`
`Edward Tufte. Tufte provides ample evidence that (1) the crafting of effective visual
`
`displays is deeply technical, that (2) getting such displays “right” can be a matter of
`
`life and death, and that (3) getting it “right” in mission critical contexts has proven
`
`time and again to be non-obvious. Attached hereto as Exhibit 2 is an excerpt from
`
`Tufte’s 1997 book, “Visual Explanations: Images and Quantities, Evidence and
`
`Narrative,” in which these points are made clear through varying representations of
`
`18
`
`Page 18 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`the same data to arrive at dramatically differing outcomes. These teachings illustrate
`
`visual analyses of the Cholera Epidemic in London in 1854 and the flawed decision
`
`to launch the Challenger Space Shuttle in 1986. Visual design (aka “optical
`
`engineering”) is a technical craft regularly requiring experimentation and innovation
`
`to solve technical problems of human perception and graphical reasoning in relation
`
`to numerical and statistical data.
`
`38. As a result of reading the patent as a whole, it is clear that the ’416
`
`Patent is a user interface technology patent that improves the science of user
`
`experience well beyond the domain of commodity trading. The ’416 Patent does not
`
`claim general trading concepts independent of the specific technical limitations
`
`taught in the specification and language in the claims. Instead, the claimed steps are
`
`directed to the construction of a specific GUI and how a user can interact with it.
`
`39. A new GUI improves the functioning of a computer when it provides
`
`new structure, makeup, and functionality that does not exist absent the new GUI. By
`
`“structure,” I mean the individual GUI components of the GUI invention, whether
`
`interactive elements or pure data display elements. By “makeup,” I mean the
`
`specific ordering and layout configuration of the various GUI structures on screen.
`
`By “functionality,” I mean the ways in which the structures and the makeup of the
`
`structures: (i) restrict and/or enable data to flow in and out of the system and (ii)
`
`restrict and/or enable a user to (a) perceive information presented by the GUI and
`
`19
`
`Page 19 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`(b) take action in relation to the system and its displayed information and interactive
`
`structures.
`
`40. Petitioner’s expert, Kendyl A. Roman (Ex. 1012), baldly asserts that
`
`the claims of the ’416 Patent can be performed with pen and paper or on a
`
`whiteboard. (Ex. 1012 ¶ 67). I am not familiar with any non-computerized pen and
`
`paper or whiteboard capable of being clicked to perform any function, no less
`
`achieve the novel multi-function result required by the limitations of the claims.
`
`41. Of particular relevance to the ’416 Patent, the Shneiderman reference,
`
`relied on by Petitioners, cites Fitts’ Law (pages 325) in relation to motor-task
`
`performance timing and accuracy. Fitts’ Law dates back to the 1950s, but the
`
`Petition is conveniently silent on the clearly technical nature of optimizing task
`
`timing and reducing user error as evidenced by Shneiderman. In contrast, one would
`
`not sidestep the similarly clearly technical nature of optimizing task timing and
`
`reducing user error when discussing the layout and functional efficacy of an airplane
`
`cockpit. Fitts’ Law was originally developed to measure and predict action in the
`
`physical world. These same principles unquestionably apply to the performance of
`
`software user interfaces, as discussed below.
`
`42. To this end, Shneiderman discusses a canonical 1992 paper by Scott
`
`MacKenzie and Bill Buxton (attached hereto as Exhibit 3), which extends Fitts’ Law
`
`to two-dimensional on-screen tasks. Such variables are critical in making design
`
`20
`
`Page 20 of 77
`
`TRADING TECH EXHIBIT 2168
`IBG et al. v. TRADING TECH. - CBM2016-00087
`
`
`
`Case CBM2016-00087
`U.S. Patent 7,412,416 B2
`
`choices such as speed-accuracy tradeoffs in human muscle movement, and decisions
`
`about GUI design variables of hit target size, hit target distance, accuracy risk, and
`
`on-screen representations of pointing devices. For example, repositioning cursors
`
`on a visual display must be done carefully to avoid causing users to lo
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
