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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
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`
`
`
` IBG LLC, INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`____________________
`
`Patent No. 7,412,416 B2
`____________________
`
`
`DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITION FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,412,416
`
`
`IBG 1012
`CBM of U.S. Pat. No. 7,412,416 B2
`
`
`
`Table of Contents
`
`“displaying a chart on a graphical user interface . . .”
`
`“displaying indicators representing historical trading data
`
`BACKGROUND OF THE SUBJECT MATTER DISCLOSED IN
`
`QUALIFICATIONS ........................................................................................ 6
`I.
`A.
`TESTIFYING ENGAGEMENTS ................................................................. 17
`II. MY UNDERSTANDING OF CLAIM CONSTRUCTION ......................... 21
`III. MY UNDERSTANDING OF OBVIOUSNESS ........................................... 21
`IV. LEVEL OF ORDINARY SKILL IN THE ART ........................................... 23
`V.
`THE ’416 PATENT SPECIFICATION ........................................................ 24
`A.
`COMPUTER HARDWARE, SOFTWARE, AND FIRMWARE ......................... 24
`B.
`INPUT/OUTPUT ADAPTERS AND USER INPUT DEVICES ......................... 25
`C.
`DISPLAY, PIXEL, AND VIDEO FRAME .................................................... 25
`D.
`BITS, BITMAPS, PIXMAPS, AND GRAPHIC IMAGES ................................. 26
`VI. OVERVIEW OF THE ’416 PATENT .......................................................... 28
`INVALIDITY UNDER 35 U.S.C. § 101 ...................................................... 34
`VII.
`VIII. THE COMBINATION OF TOKYO STOCK EXCHANGE (“TSE”),
`BAY, AND SUBLER .................................................................................... 35
`A.
`TSE ...................................................................................................... 35
`B.
`U.S. PATENT 5,347,452 TO BAY ........................................................... 35
`C.
`U.S. PATENT 5,646,992 TO SUBLER ..................................................... 35
`D.
`CLAIM 1 ................................................................................................ 35
`1.
`Preamble (1.P) ........................................................................... 36
`2.
`(1.A) .......................................................................................... 42
`3.
`. . .” (1.B) ................................................................................... 48
`4.
`“providing a plurality of locations . . .” (1.C) ........................... 50
`“placing an order icon for a particular quantity . . .” (1.D) ...... 55
`5.
`6.
`. . .” (1.E) ................................................................................... 67
`
`“generating an order to buy or sell the particular quantity
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`“sending the order to an electronic trading system . . .”
`
`7.
`(1.F) ........................................................................................... 69
`CLAIMS 2 AND 15 ................................................................................. 71
`E.
`CLAIMS 3 AND 16 ................................................................................. 72
`F.
`CLAIMS 4 AND 17 ................................................................................. 73
`G.
`CLAIMS 5 AND 18 ................................................................................. 75
`H.
`CLAIMS 6 AND 19 ................................................................................. 76
`I.
`CLAIMS 7 AND 20 ................................................................................. 77
`J.
`CLAIMS 8 AND 21 ................................................................................. 79
`K.
`CLAIM 9 ................................................................................................ 81
`L.
`M. CLAIMS 10 AND 11 ............................................................................... 83
`N.
`CLAIMS 12 AND 22 ............................................................................... 84
`O.
`CLAIM 13 .............................................................................................. 85
`P.
`CLAIM 14 .............................................................................................. 86
`Q.
`CLAIMS 23 AND 24 ............................................................................... 87
`IX. CONCLUSION .............................................................................................. 89
`
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`I, Kendyl A. Román, declare as follows:
`
`
`1.
`
`I have been engaged by Sterne, Kessler, Goldstein & Fox P.L.L.C. on
`
`behalf of Petitioners, IBG LLC, Interactive Brokers LLC, TradeStation Group,
`
`Inc., and TradeStation Securities, Inc., for the above-captioned Covered Business
`
`Method (CBM) review proceeding. I understand that this proceeding involves
`
`United States Patent 7,412,416, entitled “User interface for an electronic trading
`
`system,” by Richard W. Friesen and Peter C. Hart, filed May 3, 2006, and issued
`
`August 12, 2008 (the “’416 Patent”). I understand that the ’416 Patent claims
`
`priority to application No. 09/289,550 (now United States Patent 7,212,999), filed
`
`April 9, 1999. For the purposes of CBM review, I assume the earliest possible
`
`priority date of the ’416 Patent is the April 9, 1999 filing date to which the ’416
`
`Patent claims priority. I understand that the ’416 Patent is currently assigned to
`
`Trading Technologies International, Inc. (“TT”).
`
`2.
`
`I have reviewed and am familiar with the specification of the ’416
`
`Patent. I understand that the ’416 Patent has been provided as Ex. 1001. I will cite
`
`to the specification using the following format (’416 Patent, 1:1-10). This example
`
`citation points to the ’416 Patent specification at column 1, lines 1-10.
`
`3.
`
`I have reviewed and am familiar with the file history of the ’416
`
`Patent. I understand that the file history has been provided as Ex. 1002.
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`- 4 -
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`4.
`
`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 ’416 Patent:
`
` A certified translation of “Futures/Option Purchasing System Trading
`
`Terminal Operation Guide” (“TSE”) and the original figures in the
`
`Japanese-language original. The translation is Exhibit 1016, and the
`
`original is Exhibit 1015.
`
` U.S. Patent No. 5,347,452 to Bay, Jr. (“Bay”), Exhibit 1042.
`
` U.S. Patent No. 5,646,992 to Subler et al. (“Subler”), Exhibit 1020.
`
`A complete listing of additional materials considered and relied upon in
`
`preparation of my declaration is provided as Ex. 1014. I have relied on these
`
`materials to varying degrees. Citations to these materials that appear below are
`
`meant to be exemplary but not exhaustive.
`
`5.
`
`The ’416 Patent describes a graphical user interface for electronic
`
`trading systems. (’416 Patent, Title, 1:15-17.) I am familiar with the subject
`
`matter described in the ’416 Patent as of the earliest possible priority date of the
`
`’416 Patent (April 9, 1999).
`
`6.
`
`I have been asked to provide my technical review, analysis, insights
`
`and opinions regarding the ’416 Patent and the above-noted references that form
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`- 5 -
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`
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`the basis for the grounds of unpatentability set forth in the petition for Covered
`
`Business Method Review of the ’416 Patent.
`
`I.
`
`Qualifications
`
`7.
`
`See my Curriculum Vitae, provided as Ex. 1013, for a listing of my
`
`qualifications. This includes a list of publications for the past 10 years or more.
`
`8. 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
`
`years, including software architecture, graphical user interfaces, trading systems,
`
`and other networked, data-driven, client-server systems. My work has included
`
`analysis of trading systems including source code and user interfaces. In addition, I
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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.
`
`9. As a freshman at Brigham Young University (“BYU”) in 1976, I started
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`writing programs for IBM computers.
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`10.
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`In 1980, I worked with Apple II computers and wrote computer
`
`programs having graphic user interfaces.
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`- 6 -
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`11.
`
`In the late 1960’s and 1970’s the University of Utah was known for its
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`pioneering work in computer graphics (and the Internet1). At BYU, I got involved
`
`with computer graphics and wrote graphics programs. Many of my BYU
`
`professors had been at the University of Utah during its computer science
`
`pioneering years. One of my BYU professors, Alan Ashton, and a fellow computer
`
`science student, Bruce Bastian, worked together on word processing software with
`
`graphical display. Later, Professor Ashton and Bruce Bastian founded
`
`WordPerfect.
`
`12.
`
`I graduated with High Honors from Brigham Young University where
`
`I received a Bachelor of Science degree in Computer Science. My formal studies
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`included computer architecture, computer programming, programming languages,
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`algorithms, operating systems, database systems, and digital logic design.
`
`13.
`
`In 1981, I worked at International Business Machines (“IBM”) in San
`
`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 PC was
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`released. The IBM PC also supported graphical user interfaces.
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`
`
`
`1 In 1969, University of Utah was one of the first four nodes on the Internet.
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`- 7 -
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`14.
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`In 1982, at Dialogic, I improved the performance of the Computer
`
`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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`15.
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`In this timeframe, I had experience with Tandy computers, including
`
`the TRS-80, and with Commodore VIC 20 computers, which supported graphical
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`user interfaces.
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`16.
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`In 1984, I started writing programs for the Apple Lisa and Macintosh,
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`which had a sophisticated graphical user interface built into the firmware and
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`operating system. Both Lisa and Macintosh used a one button mouse as a pointing
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`device. The user controls various operations by clicking, double clicking, or
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`dragging the mouse. Such operations are affected by release of 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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`
`
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`2 The software, the Lucas Drawing System, had been developed by Lucas
`
`Films to aid in the production of Star Wars.
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`- 8 -
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`
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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.
`
`17. The Macintosh desktop metaphor allowed icons to be dragged and
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`dropped to perform different operations. For example, to copy a file from one disk
`
`to another, a user would drag and drop the icon representing the file to an icon
`
`representing the destination disk. To erase a file, the user would drag and drop the
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`file’s icon to the trash can icon. To eject a floppy disk, the user would drag and
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`drop the disk’s icon to the trash can icon.
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`18.
`
` I developed a Macintosh program that drew graphical icons (or
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`polygons) on the display.3 The icons changed size base 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. I also implemented a simple drawing feature where a child could
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`draw free from lines by dragging a pen across the screen. When the child clicked
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`
`
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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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`- 9 -
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`
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`the mouse the pen would start drawing on the screen until the child dropped the
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`pen, when the pen would stop drawing. My program would track the dropping and
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`dragging of the pens, and would draw the lines which traced the path of each drag
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`and drop.
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`19. 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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`20. 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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`21.
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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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`22.
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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 an 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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`- 10 -
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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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`23.
`
`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.
`
`24.
`
`In 1993 and 1994, I taught classes for Mentor Graphics to hardware
`
`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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`In addition, I taught users how to customize CAD software to perform complex
`
`custom operations based on a single action with a user input device.
`
`25.
`
`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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`- 11 -
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`26. An early game developed with the Apple Media Tool was Forever
`
`Growing Garden,4 which is a gardening simulation game. The user selects seeds
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`for different types of plants or flowers and plants them in a garden by dragging and
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`dropping the selected seeds on the desired rows. For the plants to grow, the user
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`has to water the plants by dragging a water bucket over each plant. To dig up a
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`plant, the user drags and drops a shovel on the plant’s icon.
`
`27.
`
`In the early 1990s, before the World Wide Web became
`
`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 equipment
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`software to use state of the art graphical user interfaces, developing graphic
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`animations, developing multimedia authoring tools, and various interactive CD-
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`
`
`4 The operation of the Forever Growing Garden was televised on The
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`Computer Chronicles in 1994. See https://www.youtube.com/watch?v=-
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`fZeUehoQKA (from about 9 minutes, 30 seconds to about 11 minutes, 30
`
`seconds).
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`- 12 -
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`
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`ROM titles. My work with multimedia authoring tools included developing low-
`
`level graphics software for both the Macintosh and IBM PC platforms.
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`28. 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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`29. 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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`Hewlett Packard.
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`30.
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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.
`
`31. 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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`- 13 -
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`32.
`
`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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`33. 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. cases. In those cases, I reviewed the
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`source code and operations of the market-leading day trading systems and illicit
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`copies. I also surveyed the current state of the art to address the trade secrets versus
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`what was publicly known. Tradescape was later acquired by E*Trade. As part of
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`my review of the operations in the Tradescape engagement, I personally observed
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`day traders conducting tens of thousands of dollars of transactions within seconds.
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`For example, I observed one trader buy 10,000 shares of stock and then
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`immediately buy another 10,000 shares using the same default quantity (i.e.,
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`10,000) within two seconds. Then, this same trader sold all 20,000 shares at a
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`substantial profit less than a minute later.
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`34.
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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
`
`their trading software.
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`- 14 -
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`35.
`
`I performed a code review for a patent case, Chicago Board Options
`
`Exchange v. International Securities Exchange, which involved security exchange
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`trading software.
`
`36. 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
`
`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.
`
`37. My Curriculum Vitae, which is provided as Ex. 1013, identifies over
`
`60 issued patents and over 60 published patent applications for which I am listed as
`
`an inventor or assignee. Several of my inventions include graphical user interfaces
`
`and networked client-server systems, including:
`
`
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`
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`
`
`U.S. Pat. No. 8,590,777, Space equipment recognition and control
`
`using handheld devices
`
`U.S. Pat. No. 8,500,563, Display, device, method, and computer
`
`program for indicating a clear shot
`
`U.S. Pat. No. 8,282,493, Display, device, method, and computer
`
`program for indicating a clear shot
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`- 15 -
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`
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`U.S. Pat. No. 7,698,653, Graphical user interface including zoom
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`control box representing image and magnification of displayed image
`
`U.S. Pat. No. 7,424,473, System and method for asset tracking with
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`organization-property-individual model
`
`U.S. Pat. No. 7,257,158, System for transmitting video images over a
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`computer network to a remote receiver
`
`U.S. Pat. No. 7,191,462, System for transmitting video images over a
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`computer network to a remote receiver
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`U.S. Pat. No. 6,803,931, Graphical user interface including zoom
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`control box representing image and magnification of displayed image
`
`38.
`
`I have reviewed and analyzed numerous patents and prior art systems
`
`through my litigation support work, including patents and prior art related to the
`
`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
`
`Sunnyvale Center for Innovation, Inventions, and Ideas (Sc[i]3).
`
`39. 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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`- 16 -
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`
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`computer architecture, computer hardware, database systems, networks, and
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`computer forensic science.
`
`40.
`
`In addition, I recently served as a Special Master in a Federal District
`
`Court in Paycom Payroll, LLC v. Richison and Period Financial, which included
`
`financial systems with graphical user interfaces, and have served as a court-
`
`appointed expert in San Jose, CA in Aspect Communications Corporation v.
`
`eConvergent, Inc. et al., which included financial systems with graphical user
`
`interfaces, and in Ribeiro v. Weichselbaumer, which include financial and
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`graphical analysis.
`
`A.
`Testifying Engagements
`41. Cases in which I have testified as an expert witness at trial or by
`
`deposition during the previous four years are identified as:
`
`
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`Davis and Carlos v. HireVue, Inc. et al., No. 140900780 (Utah State
`
`3rd District Court, Salt Lake County);
`
`
`
`
`
`
`
`Embry v. Acer America Corp., No. 5:09-cv-01808 (N.D. Cal.);
`
`Futurelogic, Inc. v. Nanoptix, Inc., 2:10-cv-07678 (C.D. Cal.);
`
`Hickok, Inc. v. SysTech International, LLC, No. 1:7-cv-03565 (N.D.
`
`Ohio);
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`- 17 -
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`
`
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`
`
`
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`
`
`
`
`IBG LLC v. Trading Techs. Int’l, Inc., CBM2015-00179, CBM2015-
`00181, CBM2015-00182, CBM2016-00009, CBM2016-00032,
`CBM2016-00054 (U.S. Patent Trial and Appeal Board);
`
`Miller v. Fuhu, Inc., No. 2:14-cv-6119-CAS(ASx) (C.D. Cal.);
`
`MyKey Technology Inc. Patent Litigation, No. 2:13-ml-02461 (C.D.
`Cal.);
`
`Parallel Networks, LLC v. A10 Networks, Inc., No. 1:13-cv-1943 (D.
`Del.);
`
`Parallel Networks, LLC v. F5 Networks, Inc., No. 1:13-cv-2001(D.
`Del.);
`
`Reporting Technologies, Inc. v. Emma, Inc., No. 1:11-cv-01203 (E.D.
`Va.);
`
`Sanford L.P. v. Esselte AB, No. 1:14-cv-07616 (S.D.N.Y.);
`
`SAS Institute, Inc. v. World Programming Limited, No. 5:10-CV-25-
`FL (E.D.N.C.);
`
`T. Rowe Price Investment Services, Inc. v. Secure Axcess, LLC, No
`CBM2015-00027 (U.S. Patent Trial and Appeal Board).
`
`TD Ameritrade v. Trading Technologies International, Inc., Nos.
`CBM2014-00131, 133, 135, and 137 (U.S. Patent Trial and Appeal
`Board);
`
`
`
`Wellogix, Inc. v. Accenture LLP, 3:08-cv-119 (S.D. Tex.); and
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`- 18 -
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`
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`Wellogix, Inc. v. BP America, Inc., No. 4:09-cv-1511 (S.D. Tex.).
`
`42. Also the following is the case identification of the cases where I have
`
`provided recent reports or declarations but have not testified:
`
`
`
`GoPro, Inc. v. Contour, LLC , Nos. IPR2015-01078 and IPR2015-
`
`01080 (U.S. Patent Trial and Appeal Board);
`
`
`
`
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`Innersvingen AS v. Sports Hoop, Inc., No. 2:12-cv-05257 (C.D. Cal.);
`
`Lilith Games (Shanghai) Co. Ltd. v. uCool, Inc., No. 4:15-cv-01267
`
`(N.D. Cal.);
`
`
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`Loop AI Labs Inc. v. Gatti, Almawave, et al., No. 15-cv-798 (N.D.
`
`Cal.);
`
`
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`Malanche v. Eisenhower Medical Center, No. INC1108128 (Superior
`
`Court of California, Riverside County);
`
`
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`Paycom Payroll, LLC v. Richison, No. 5:09-CV-00488-W (W.D.
`
`Okla.);
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`
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`TradeStation Gr’p, Inc. v. Trading Techs. Int’l, Inc., CBM2016-00051
`
`(U.S. Patent Trial and Appeal Board); and
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`
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`Twin City Fan Companies, Ltd. v. FPT Software, No. 0:12-cv-1357
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`(D. Minn.)
`
`43. Some additional prior cases related to software interfaces, graphics,
`
`and patent analysis, include: Konrad v. General Motors, et al.; ACTV, Inc. and
`
`HyperTV Networks, Inc. v. The Walt Disney Co., ABC, Inc. and ESPN, Inc.; and
`
`Collaboration Properties v. Polycom.
`
`44.
`
`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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`Many of these systems allowed for available commodities to be displayed in order
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`of price or other values.
`
`45.
`
`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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`46.
`
`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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`- 20 -
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`47. My Curriculum Vitae is included as Ex. 1013, which contains further
`
`details on my education, experience, publications, and other qualifications to
`
`render an expert opinion. My work on this case is being billed at a rate of $525.00
`
`per hour, with reimbursement for actual expenses. My compensation is not
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`contingent upon the outcome of this covered business method review or the
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`litigation involving the ’416 Patent.
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`II. MY UNDERSTANDING OF CLAIM CONSTRUCTION
`48.
`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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`III. MY UNDERSTANDING OF OBVIOUSNESS
`49.
`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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`50.
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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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`51. 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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`52. 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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`53.
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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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`54.
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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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`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
`55. Based on the considerations I listed above, I conclude that one of
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`ordinary skill in the art at the time of the alleged invention (i.e., in the April 9,
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`1999 timeframe) would have had the equivalent of a Bachelor’s degree or higher in
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`computer science or computer engineering, at least 2 years working experience
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`designing and/or programming graphical user interfaces, and direct or indirect
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`experience with trading or related systems. Experience could take the place of
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`some formal training, as domain knowledge and user interface design skills may be
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`learned on the job. This description is approximate, and a higher level of education
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`or skill might make up for less experience, and vice versa.
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`V. BACKGROUND OF THE SUBJECT MATTER DISCLOSED IN THE
`’416 PATENT SPECIFICATION
`A.
`Computer Hardware, Software, and Firmware
`56. Originally, computers were composed only of physical circuits,
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`known as hardware,5 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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`instructions) stored in memory are known as software,6 because they can be
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`modified much more easily than hardware. In the late 1970’s, personal computers
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`(PCs) became commercial products (such as the Apple II in 1977). In some PCs, a
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`
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`5 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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`6 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 1036, Oxford Dictionary, ‘software’.)
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`- 24 -
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`
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`bootstrap loader and other basic input and output programs were permanently
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`stored in hardware chips, known as read-only-memories (“ROM”). These
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`programs recorded indelibly in ROM were no longer “soft” enough to be modified,
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`but could be changed by replacing one socketed ROM with another ROM
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`containing another version of the program. Because they are intimately bonded
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`with the hardware, these programs are called firmware.7
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`B.
`57.
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`Input/Output Adapters and User Input Devices
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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
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`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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`C. Display, Pixel, and Video Frame
`58. 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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`
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`7 Generally, firmware refers to CPU instructions stored in a programmable
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`ROM.
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`- 25 -
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`from the cathode (the negative terminal) on the back of 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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`59.
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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 refresh at 30 times a
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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 e