throbber
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`In the Inter Parres Review of U.S. Patent No. 7,860,131
`
`Trial No.2 IPR2013-00156
`
`Issued: December 28, 2010
`
`Filed: June 7, 1995
`
`Inventors: John Christopher Harvey, er al.
`
`Assignee: Personalized Media Communications, LLC
`
`Title: SIGNAL PROCESSING APPARATUS AND METHODS
`
`REBUTTAL DECLARATION OF CHARLES J. NEUHAUSER, Ph.D.
`UNDER 37 C.F.R.§ 1.68
`
`I, Dr. Charles J. Neuhauser, do hereby declare:
`
`1.
`
`I am making this rebuttal declaration at the request of Zynga, Inc. in
`
`the matter of the Inter Partes Review of U.S. Patent No. 7,860,131 (“the ‘131
`
`Patent”)
`
`2.
`
`I am being compensated for my work in this matter at my standard
`
`hourly rate of $375 for consulting services. My compensation in no way depends
`
`on the outcome of this proceeding.
`
`3.
`
`I previously submitted a declaration in support of the Petition for Inter
`
`Partes Review filed by Zynga, Inc. on February 22, 2013 (Exhibit 1010, referred to
`
`herein as “Neuhauser I”).
`
`4.
`
`This declaration is in rebuttal to the Patent Owner Response (Paper
`
`No. 21) (referred to herein as “PMC Resp”) and the Declaration of Samuel H.
`
`ZYNGA EX. 1012
`
`

`
`Russ, Ph.D. (Exhibit 2015) (referred to herein as “Russ Decl.”) both filed on
`
`October 25, 2013.
`
`5.
`
`For ease of reference the rebuttal arguments below will generally be
`
`presented in the same order as the Petitioner’ Reply to Patent Owner’s Response.
`
`1.
`
`Claims 1, 3, 4, 6, 9 and 11 Are Anticipated by Higgins (Exhibit 1007)
`
`A.
`
`Higgins discloses “storing programming... comprising a computer
`program and a portion to be completed”
`
`6.
`
`With respect to the first element of claim 1 PMC and Dr. Russ assert
`
`that Higgins does not disclose the following aspect of the first element of claim 1:
`
`“storing programming at said storage device, programming comprising a
`
`computer program and a portion to be completed.” [PMC Resp., pp. 16-20; Russ
`
`Decl., 1156-68]
`
`In addition Dr. Russ argues that I have not shown that Higgins
`
`stores the portion to be completed. [Russ Decl., 1165] I disagree.
`
`7.
`
`First, Dr. Russ asserts that I did not identify the aspect of Higgins that
`
`discloses “programming.” [Russ Decl., 1157] However in Neuhauser I at 1164-66 I
`
`explicitly identified the computer program stored in RAM 111 and ROM 109 as
`
`programming. Dr. Russ seems to be implying that the computer program of the
`
`claim must be a part of the “programming.”
`
`[Russ Decl., 1160-61] This is
`
`incorrect; the claim simply refers to the “programming” as comprising a “computer
`
`program” and a “portion to be completed.” Dr. Russ presents diagrams in these
`
`paragraphs illustrating his concept of programming as described in the preferred
`
`2
`
`

`
`embodiments. However,
`
`this is not the only way that programming can be
`
`provided. For example, the programming may consist of only a computer program
`
`and a portion to be completed or it may consists of other types of program
`
`material, plus the computer program and the portion to be completed. The portion
`
`to be completed might or might not be a part of the computer program:
`
`The present invention consists of an integrated system of
`
`methods and apparatus for communicating programming. The
`
`term “programming” refers to everything that is transmitted
`
`electronically to
`
`entertain,
`
`instruct or
`
`infonn,
`
`including
`
`television, radio, broadcast print, and computer programming as
`
`well as combined medium programming.
`
`[Exhibit 1001, 6:29-
`
`34]
`
`8.
`
`PMC also wrongly concludes
`
`that claim 1
`
`requires
`
`that
`
`the
`
`programing to be completed must be completed in the storage device.
`
`[PMC
`
`Response., p 18] Claim 1 requires “storing programming... said programming
`
`comprising a computer program and a portion to be completed” and separately
`
`requires that execution of the computer program enables a processor to “place
`
`information... into said portion to be completed.” There is nothing in the claim
`
`that states how the completion must take place or that the “programming” must be
`
`completed as stored. Nor does the specification of the ‘131 patent justify PlVIC’s
`
`narrow interpretation. For example, when displaying the graphics and audio in the
`
`Exotic Meals of India example, the graphic of the price and the audio of the
`
`3
`
`

`
`savings are displayed while the video portion of the programming is being
`
`received.
`
`[‘l31, 252:57—25-4:11]
`
`In this case the video information is complete
`
`when it is received and the Video of the price and the audio of the discount are
`
`overlaid on the video as it is being received.
`
`9.
`
`Furthermore, the programming in Higgins is actually completed in
`
`storage. Dr. Russ argues that Higgins does not complete programming in storage
`
`because Higgins does not disclose a video or display RAM.
`
`[Russ Decl., [[65]
`
`This is not correct. Higgins discloses that the display is created using “windows”
`
`based software to coordinate presenting information on the display.
`
`[4:41-44]
`
`It is
`
`well-known that such software is used to present information stored in memory on
`
`a display whether or not a system includes a video or display RAM. Higgins also
`
`describes that when ticker plant information is received that all the appropriate
`
`display fields are updated from memory. [Higgins 8:51-58]
`
`Assuming that the trade information being reported by ticker
`
`plant 35 is germane to one or more of the applications for that
`
`specific work station 110, the data base in RAM lll associated
`
`with that security is updated (step 308) to reflect the last trade
`
`and quotations
`
`for
`
`that
`
`stock and step 310 updates
`
`all
`
`applications (windows and the related window-driving storage)
`
`associated with that stock as necessary. [Exhibit 1007, 8:51-58]
`
`

`
`10.
`
`Further, it is clear that the programming is completed in the RAM of
`
`the CPU because Higgins expressly states that the stock trade information is placed
`
`in the RAM ofthe workstation 110.
`
`[Higgins 5:65—6:5]
`
`11. Although Dr. Russ states that Higgins does not disclose a display
`
`RAM or video RAM [Russ Decl., 1[65], the fact is, that Higgins expressly discloses
`
`such a memory. Aside from the disclosure cited directly above, Higgins describes
`
`the action of Box 322 in Fig. 4 as “Enter Ticl<er(I) Display Memory” and further
`
`describes this action at Higgins 9:22-25, a section that Dr. Russ includes in his
`
`report a W5.
`
`If the criteria is satisfied (YES output of test 320) the message
`
`is added to the appropriate ticker display memory or memories
`
`for entry into the appropriate ticker.
`
`[Exhibit 1007, 9:22-25]
`
`12.
`
`PMC and Dr. Russ also mistakenly conclude that I have identified the
`
`display windows in Higgins, and not any “programming" as the portions to be
`
`completed.
`
`[PMC Resp., pp. 19-20; Russ Decl., 63-66] This is a misreading of
`
`what I am describing. The display shown in Higgins Figure 2 represents the
`
`programming as displayed. One of ordinary skill in the art would understand from
`
`Higgins that particular windows
`
`in this display represent
`
`the portions of
`
`programming to be completed in RAM as they are to be displayed. The contents
`
`of these windows are held in storage and their presentation is evidence that there is
`
`a portion to be completed.
`
`

`
`13.
`
`Dr. Russ presents two diagrams at1l1l60-61 of his report that he asserts
`
`show the relationship between “programming,” a “computer program” and a
`
`“portion to be completed.” These diagrams represent only one of a number of
`
`possibilities for how these aspects of claim 1 could be related. For example, the
`
`computer program and the portion to be completed could represent the complete
`
`programming. Another example would be that the portion to be completed could
`
`be part of the computer program itself. Dr. Russ’s diagram is too limiting and only
`
`represents an aspect of particular preferred embodiments, not all reasonable
`
`interpretations of claim 1 itself.
`
`B. Higgins discloses a “computer program operative to complete said
`portion”
`
`14.
`
`PMC and Dr. Russ argue that Higgins does not disclose a “computer
`
`program” that
`
`is “operative to complete said portion when executed.”
`
`[PMC
`
`Resp., pp. 20-21; Russ Decl., W63-66] I disagree.
`
`15.
`
`In effect PMC is saying that the display of Higgins does not present
`
`completed programming because the display is “updated” instead of “completed.”
`
`In my opinion,
`
`this interpretation of completed programming is unreasonably
`
`narrow. In Higgins the display is continually updated. When stock trade messages
`
`arrive, the display is complete for the previous message, but not yet completed
`
`with respect to the new stock trade message. The stock trade message then causes
`
`

`
`the information in storage to be completed according to the message and this in
`
`turn causes the generation of a new display in storage that represent the intended
`
`completed programming for display.
`
`[Higgins 8:51-58]
`
`16.
`
`PMC gives an example at p. 21 in which at time T1 the price of ABC
`
`stock is shown as $100 and then after a new quote is received at time T2 the price
`
`of ABC stock now shows $125. According to PMC this is “updating” not
`
`“completing.” I disagree. One of ordinary skill in the art would understand that in
`
`the system of Higgins, at the point in time when the second stock trade for ABC is
`
`received, the current display is not complete with respect to the latest information.
`
`The current display only becomes complete once the computer program of Higgins
`
`responds to the trade and presents the new stock trade information (i.e. $ 125).
`
`17.
`
`Further, PMC and Dr. Russ have not considered the situation when
`
`the system of Higgins is first turned on and has not yet received a stock trade
`
`message for ABC (or IX) company.
`
`In this situation, the Monitor window 153
`
`would show no information, which would not be “completed” even under PMC’s
`
`narrow interpretation, because even though ABC company might have been traded
`
`moments ago, that information is not in the window. Once the system of Higgins
`
`receives the latest stock trade message for ABC (or IX) company then the display
`
`would be completed. This is exactly like the ‘131 preferred embodiment of the
`
`Exotic Meals of India. In this example the programming presented is “incomplete”
`
`

`
`under PMC’s interpretation until the actual overlay of the offer for discounted pork
`
`bellies is placed on the screen.
`
`[‘l31 252:40-253:29] At that point it is complete
`
`because it is shown as intended.
`
`18. When presented with this scenario (the point in time when Higgins’
`
`system is first turned on) during his deposition, Dr. Russ inexplicably concluded
`
`that even when Higgins’ system is first turned on, its display is “complete” because
`
`“as far as the station knows no trades have occurred”:
`
`Q. Let’s assume even a third scenario,
`
`let’s assume it
`
`just got switched on. All of the fields are blank.
`
`It hasn’t been
`
`populated as it will be as trades start to come in.
`
`Is the blank area complete, or is it to be completed?
`
`A.
`
`I think at that moment in time it is complete in the
`
`sense that as far as the station knows no trades have occurred.
`
`And the goal of the station is to present to the user the trades of
`
`which it is aware.
`
`[Exhibit 1014, pgs. 554-555.]
`
`19.
`
`The above deposition testimony is a good example of just how
`
`unreasonably narrow PMC is interpreting the claims in an attempt to avoid the
`
`disclosures of the Higgins and Hedges patents. According to Dr. Russ’ testimony,
`
`even when Higgins’ display is producing nothing but blank fields, the display is
`
`“complete” under PMC’s narrow interpretation. These are display fields that are
`
`indisputably intended to be filled with incoming stock information during normal
`
`

`
`operation. But Dr. Russ and PMC would have the Board believe that these fields
`
`are “complete” even when blank. This interpretation is clearly unreasonable under
`
`any standard.
`
`C.
`
`Higgins discloses “prestored data” used to complete the
`programming
`
`20. With respect to the second element of claim 1 PMC and Dr. Russ
`
`assert that Higgins does not disclose that the “prestored data” is stored before the
`
`storing of the programming in the first step.
`
`[PMC Resp. pp. 6-7; Russ Dec1., 1171]
`
`This is not a correct interpretation of claim 1. There is no specific ordering
`
`between the between the storing of the computer program and the storing of the
`
`“prestored data.” One of ordinary skill in the art would see that the only ordering
`
`required is that the “prestored data” must be stored prior to the execution of the
`
`computer program. Whether the computer program or the “prestored data” is
`
`stored first is irrelevant to the claim.
`
`21.
`
`The language of the first element of claim 1 only states that the
`
`portion to be completed must be completed using prestored data. This would
`
`suggest to one of ordinary skill in the art that the “prestored data” could either be
`
`stored before or after the step of storing the portion to be completed. There is no
`
`particular ordering suggested in this element of the claim. Moreover, the second
`
`element of the claim indicates that the “prestored data” is used with respect to the
`
`

`
`execution of the computer program. Thus, one of ordinary skill in the art would
`
`understand that the only actual ordering requirement is that the “prestored data”
`
`must be present when the computer program that will make use of the prestored
`
`data is actually executed.
`
`In other words, the “prestored data” must be stored
`
`before it is accessed to complete the “portion to be completed” (as opposed to
`
`being received and processed in real time.)
`
`D.
`
`Higgins discloses a computer program operative to “select a
`specific datum from said prestored data and place information,
`which results from a processing of said selected datum, into said
`portion to be completed”
`
`22.
`
`The second element of claim 1
`
`requires (among other aspects)
`
`execution of a computer program “to select a specific datum from said prestored
`
`datum and place information, which results from processing of said selected
`
`datum, into said portion to be completed. ” PMC and Dr. Russ View this aspect of
`
`the second element as defining three operations:
`
`0
`
`selecting a specific datum from the prestored data;
`
`0 processing the selected specific datum,
`
`the processing resulting in
`
`information; and
`
`0 placing the information resulting from the processing of the selected
`
`datum into the portion to be completed.
`
`[PMC Resp., p. 23; Russ
`
`Decl., 1172]
`
`10
`
`

`
`23.
`
`PMC and Dr. Russ mistakenly conclude that none of the above
`
`aspects are disclosed by Higgins.
`
`[Sea PMC Resp., pp. 23-29 and Russ Decl.,
`
`W72-82]
`
`To be consistent with PMC’s Response,
`
`I address the “placing”
`
`limitation below at Section I.E.
`
`24.
`
`In my previous declaration, I identified the “prestored data” as the
`
`user defined lists of securities of interest and other criteria stored by the user.
`
`[Neuhauser
`
`I, 1l68]
`
`This would include the particular stocks of interest,
`
`identification of a particular exchange, limit information and so forth. Higgins
`
`discloses that there are number of types of prestored data, each related to the
`
`presentation of information in a particular window. [Higgins 8:38-51]
`
`25. With respect
`
`to the “selecting” limitation, PMC and Dr. Russ
`
`incorrectly conclude that this aspect of the claim requires that only a part of the
`
`prestored data may be selected by the program.
`
`This is a more narrow
`
`interpretation than what one of ordinary skill in the art would understand from the
`
`language of the claim. The person of ordinary skill in the art would understand
`
`that selecting all of the prestored data for processing would encompass selecting a
`
`specific datum from the prestored data.
`
`26.
`
`In any case, Higgins discloses that there are a number of individual
`
`displays that might be modified by the reception of a particular stock trade.
`
`[Higgins 8:24-33] Each of these particular updates involves a specific subset of
`
`11
`
`

`
`the entire prestored data.
`
`In order to update a particular window,
`
`it
`
`is only
`
`necessary that program execution examine the sub-set of prestored data that is
`
`associated with that particular window. Figure 4 of Higgins expressly discloses
`
`that these are separate steps of processing.
`
`[Higgins 8:38-9:37] For example,
`
`block 308 and 310 disclose updating certain applications, block 313 discloses
`
`updating the limit alarms and block 322 discloses updating the ticker display
`
`memories.
`
`27.
`
`Further, one of ordinary skill in the art would also understand that the
`
`execution of the computer program represented by Figure 4 would necessarily
`
`represent processing individual items from the various lists of items described by
`
`Higgins. The example provided by Dr. Russ at 1176-77 is flawed. Dr. Russ states
`
`that he does not believe that a particular entry can be selected out of the criteria for
`
`processing. However, there is no technical basis for such a statement and the
`
`person of ordinary skill in the art would understand that every execution of the
`
`program of Higgins necessarily requires the examination of each aspect of the
`
`criteria. Dr. Russ states that if the criteria for display is “criteria = ‘IX’ or ‘CD’ or
`
`‘MNO”’ then every item of the prestored criteria must be processed if the stock
`
`trade CD occurs. This is incorrect.
`
`28. One of the most basic search techniques taught to computer engineers
`
`is scanning a list for a match until the match is found.
`
`It is common knowledge
`
`12
`
`

`
`that you need to go no further, unless the particular item of interest is the last one
`
`in the list. This is basic programming and Higgins does not disclose otherwise.
`
`Thus it is clear that if a list contains three or more items, as in Dr. Russ’s example,
`
`then it is usually not necessary to examine all the items when the received stock
`
`trade is contained in the list. Further, in the case of the Limit window 151 the
`
`processing required to determine the direction of the out of limit condition only
`
`requires processing of the limit bound associated with the particular stock trade
`
`and not the processing of the limits associated with every stock in the limit list.
`
`[Higgins, Fig. 4; 8:64-9:7]
`
`29.
`
`PMC and Dr. Russ also argue that
`
`the “prestored data” is not
`
`“processed” as required by the execution of the computer program.
`
`[PMC Resp.,
`
`pp. 27-29; Russ Decl., W78] For such a statement to be true the interpretation of
`
`“processing” would have to have an extraordinarily, and unreasonably narrow
`
`meaning.
`
`It would for example need to exclude comparing the item in one of the
`
`lists of interest against the incoming stock trade symbol. Further, it would need to
`
`exclude the comparison of the stock trade price against a limit value to determine if
`
`the limit is exceeded. All of this is described with respect to Figure 4.
`
`[Higgins,
`
`8:38-9:37] There is certainly nothing in the ‘l31 patent that would suggest the
`
`processing by execution of a computer program would not include comparing.
`
`Certainly one of ordinary skill in the art would understand that comparing would
`
`13
`
`

`
`be part of “processing” by execution of a computer program.
`
`I therefore disagree
`
`with PMC’s overly narrow interpretation.
`
`E.
`
`Higgins discloses a computer program operative to “place
`information... into said portion to be completed”
`
`30.
`
`PMC and Dr. Russ separately address the third aspect related to
`
`“prestored data” from above, namely “placing z'r;format‘z'on, which results from a
`
`processing cfsaid selected datum, into saidporriorz to be completed.” [PMC Resp.,
`
`p. 29; Russ Decl., 111181-82] They argue that this aspect of the second element is
`
`not shown because the display of information is not placed in memory. Although I
`
`do not believe that this is a limitation of the claim, as I have explained above,
`
`Higgins does disclose this expressly.
`
`In my previous declaration, I identified the
`
`display of Higgins as representing the completed programming because this is a
`
`concrete representation of the results of the execution of the computer program of
`
`Higgins.
`
`[Neuhauser 1, W62] Higgins expressly discloses that the display is the
`
`result of information stored in memory, which is itself the result of executing a
`
`computer program. As I have explained above (and contrary to what Dr. Russ
`
`asserts at 1165) the processed results are placed in display memory. [Higgins Fig. 4,
`
`item 322; 9:18-25; 8:51-58] From this description in Higgins one of ordinary skill
`
`in the art would understand that the contents of the display windows are based on
`
`the contents of information stored in memory:
`
`14
`
`

`
`Assuming that the trade information being reported by ticker
`
`plant 35 is germane to one or more of the applications for that
`
`specific work station 110, the data base in RAM 111 associated
`
`with that security is updated (step 308) to reflect the last trade
`
`and quotations
`
`for
`
`that
`
`stock and step 310 updates all
`
`applications (windows and the related window-driving storage)
`
`associated with that stock as necessary. [Exhibit 1007, 8:51-58]
`
`F.
`
`Higgins discloses a “control signal operative to cause said
`execution of said computer program”
`
`31.
`
`PMC and Dr. Russ argue that Higgins does not disclose the third
`
`element of claim 1, namely, “storing a control signal which is operative” at the
`
`station “to cause execution of said computer program." [PMC Resp., pp. 29-36;
`
`Russ Decl., 111183-91]
`
`In my previous declaration, I identified the “control signals”
`
`as either stock trade messages received from the ticker plant or keyboard entries
`
`from the signal entry keyboard.
`
`[Neuhauser I, W74-77] PMC and Dr. Russ make
`
`several arguments with respect to the third claim element:
`
`0
`
`(1) A stock trade message cannot be both the “control signal” and the
`
`“information that results from processing.” [PMC Resp., pp. 29-30;
`
`Russ Decl., 1H[90—91]
`
`I
`
`(2) New criteria entered from the keyboard are not “prestored”
`
`because they are not defined prior to the storing of the “computer
`
`program.” [PMC Resp, pp. 30-31; Russ Decl., W85]
`
`15
`
`

`
`0
`
`(3) The window update “criteria” from the keyboard cannot be both
`
`the “control signal” and the “prestored data.” [PMC Resp., pp. 32-33;
`
`Russ Decl., W87]
`
`0
`
`(4) A user keyboard entry does not cause execution of a “computer
`
`program.” [PMC Resp., pp. 31-32; Russ Decl., 1186]
`
`0
`
`(5) Keyboard inputs do not customize the display.
`
`[PMC Resp., pp.
`
`34-36; Russ Decl. M87]
`
`32. With respect to item (1) above PMC argues that the stock trade that is
`
`received by the workstation of Higgins cannot be both the “control signal” and the
`
`“information that results from processing.
`
`[PMC Resp., pp. 29-30; Russ Decl.,
`
`1[1l90-91] However, the claim does not require that the two aspects be in separate
`
`signals. Reasonably interpreted, one signal can provide both the control signal that
`
`causes the execution and contains the information that will be the result of that
`
`processing. This is no different from what the ‘l3l patent shows in many of its
`
`preferred embodiments with respect to SPAM messages. The SPAM message is
`
`one of the central features of those embodiments. Figure 2E, for example, shows
`
`the format of one type of SPAM message. This message contains a command
`
`segment and an information segment.
`
`33.
`
`Similar to the SPAM messages disclosed in the ‘131 patent, the stock
`
`trade messages of Higgins contain a corresponding “command” segment
`
`that
`
`16
`
`

`
`identifies the stock being traded and an “information” segment that provides stock
`
`trade information, like price, that provides information to be placed into the portion
`
`to be completed.
`
`In addition, the stock trade message acts as a control signal
`
`because its reception causes the execution of a computer program in the system of
`
`Higgins.
`
`[see, e.g., Fig. 4, item 301; 8:38-51] The message also contains the
`
`“information” to be used in completing the “portion to be completed” when the
`
`stock identified in the received message matches particular criteria in the
`
`workstation 110. One of ordinary skill in the art would therefore understand that
`
`the stock trade messages of Higgins are no different from the SPAM messages of
`
`the ‘13l patent.
`
`34.
`
`Further, during his deposition, Dr. Russ agreed that the receipt of the
`
`trade message, as shown in Figure 4 of Higgins, causes the ticker message to be
`
`processed:
`
`Q. Now, viewing just the trade message, do you agree
`
`that in Higgins when the trade message is received a processor
`
`is triggered to perform various operations?
`
`A. Well, I guess the most accurate way I would put is it
`
`that Figure 4 would seem to describe a situation in which a
`
`ticker message is read and processed.
`
`Q.
`
`It is read, and as a result of it being read, processing
`
`occurs?
`
`A. Yes.
`
`17
`
`

`
`[Exhibit 1014, pg. 600.]
`
`35. With respect to item (2) above, PMC and Dr. Russ assert that the
`
`criteria entered from the keyboard are not “prestored” because they are not defined
`
`prior to the storing of the “computer program.”
`
`[PMC Resp., pp. 30-31; Russ
`
`Decl., W85] This is the same argument that I addressed above at Section I.D.
`
`There is nothing in the language of claim I that requires the prestored data to be
`
`stored before the storing of the computer program. One of ordinary skill in the art
`
`would understand that the order of storing the “prestored data” and the “computer
`
`program” is irrelevant as long as the “prestored data” is available when the
`
`“computer program” is executed.
`
`36. With respect to item (3) above, PMC and Dr. Russ assert that window
`
`update “criteria” from the keyboard cannot be both the “control signal” and the
`
`“prestored data.” [PMC Resp., pp. 32-33; Russ Decl., W87] But Higgins expressly
`
`states that the criteria that may be entered at the keyboard includes selection of the
`
`contents of the ticker displays 142, 147. Higgins states that the criteria may select
`
`that a pre-stored list of stocks beused as the criteria or, in at least one alternative, a
`
`particular exchange may be monitored.
`
`[Higgins 9:25-37] Thus,
`
`the criteria
`
`established at the keyboard may be different from the “prestored data” which is a
`
`list of stocks to be monitored.
`
`18
`
`

`
`37. Higgins also discloses an additional use of keyboard control signals,
`
`namely the use of keyboard control signals to define the format and overall shape
`
`of the display.
`
`[See, Neuhauser I, ]]76] Higgins shows that keyboard input may
`
`establish the arrangement of multiple windows on the display screen.
`
`[Higgins
`
`4:34-41; 4:60-62] One of ordinary skill in the art would understand that these
`
`keyboard control signals are different from those keyboard control signals that
`
`define the prestored data.
`
`38.
`
`PMC and Dr. Russ argue that with respect to item (4) above the
`
`keyboard does not cause execution of a computer program.
`
`[PMC Resp., pp. 31-
`
`32; Russ Decl., 1]86] As best understood, Dr. Russ argues that if the keyboard was
`
`checked periodically then this would not be a cause of execution of a computer
`
`program. This is a very restricted interpretation of what it means to “cause
`
`execution of a computer program.” The system of Higgins derives its power from
`
`being computer controlled.
`
`[Higgins 2:15-26] The third element of the claim only
`
`requires that the control signal cause the execution of the computer program.
`
`It
`
`does require that the execution occur immediately, or within any particular period
`
`of time. One of ordinary skill in the art would understand that signals from the
`
`keyboard of Higgins will result in different execution paths in the program in
`
`Higgins because different signals lead to different results. Whether there is a delay
`
`between the application of the control signal from the keyboard or whether it
`
`19
`
`

`
`occurs immediately is immaterial as long as the computer program is executed due
`
`the application of the keyboard signal.
`
`39.
`
`Finally, with respect to item (5) above, PMC and Dr. Russ assert that
`
`keyboard inputs do not customize the display in Higgins.
`
`[PMC Resp., pp. 34-36;
`
`Russ Decl. 111187] This is incorrect. Keyboard entries by the user allow the
`
`window display of Higgins to be customized. For example, there can be multiple
`
`windows and windows can overlay one another based on user input.
`
`[Higgins
`
`4:36-39; 5:36-40]
`
`G.
`
`Higgins discloses “storing in said control signal two or more
`control instructions with information designating a time period”
`(Claim 4)
`
`40. With respect to claim 4, PMC and Dr. Russ argue that the stock trade
`
`messages do not contain the time of the trade and thus do not disclose “storing in
`
`said control signal two or more control
`
`instructions in (1 specific order with
`
`information designating a time period.” [PMC Resp., pp. 37-38; Russ Decl., W94-
`
`99] Previously, I have identified the time field of the Quick—Quote display 157 in
`
`Higgins as providing the indication of a time period because this is the time that a
`
`particular trade occurred.
`
`[Neuhauser 1, W91] PMC and Dr. Russ assert that this
`
`time indication is not received with the stock trade message. This is incorrect.
`
`In
`
`describing the contents of the Quick-Quote field, Higgins expressly states that the
`
`time shown is the “time of the last trade”:
`
`20
`
`

`
`Finally, a QUICK-QUOTE field 157 provides a quotation for a
`
`particular stock (ABC) having a symbol entered by the user via
`
`keyboard 112. Reading across the illustrative entry of "FIG. 2,
`
`the stock symbol is followed by an identifier for the exchange
`
`executing the last trade (New York) in the security, an arrow
`
`showing the tick direction of the last trade (up), the trade price
`
`(90%), the current bid (90 5/8) and asked (90 7/8) prices and the
`
`exchanges where those bid and ask prices came from (bid-
`
`Boston and New York, asked-American and Toronto), the bid
`
`and ask volume sizes (60 and 5 respectively), the number of
`
`shares (230,800) of that security traded so far during that
`
`business day, and the time of the last trade (12:02).
`
`[Exhibit
`
`1007, 5:23-36, with emphasis added.]
`
`41.
`
`There is no reasonable way that this could be provided other than
`
`including the time as part of the stock trade message, because the originating stock
`
`ticker plant is the only entity in the system that can determine the time of the last
`
`trade. Dr. Russ argues that providing the time in the trade information would only
`
`delay the stock ticker.
`
`[Russ Dec-l., 1199] However, knowing the time of the last
`
`trade is important.
`
`If a broker were to make a request for Quick-Quote at a
`
`terminal they would be interested in the time of the last trade, not when they made
`
`the request, which they already know. Clearly the time of the trade would be very
`
`important in comparing the price of the stock against overall market trends and
`
`21
`
`

`
`news items. The time of the last trade can only reasonably be provided by the
`
`ticker plant.
`
`42. During his deposition, Dr. Russ argued that because the Higgins’
`
`system has low latency,
`
`the time that the ticker message is received at
`
`the
`
`workstation could be substituted for the actual
`
`time of the trade at the stock
`
`exchange in order to display the “time of the last trade.” [See, Exhibit 1014, pgs.
`
`606-611]
`
`I disagree. The Higgins’ patent describes a ticker message that displays
`
`the “time of the last trade,” not the time the message was received, or an estimate
`
`of the time of the last trade. This is an important distinction because, as Dr. Russ
`
`acknowledges in his deposition, it is very desirable in this type of system to have
`
`an accurate reporting of the time of the last trade. The only reasonable way to
`
`achieve this is by providing the time of the last trade in the trade message from the
`
`ticker plant.
`
`H.
`
`Higgins discloses “said portion to be completed comprises
`generally applicable information” (Claim 6)
`
`43. With respect to claim 6, PMC and Dr. Russ argue that Higgins does
`
`not disclose that
`
`the “portion to be complete comprises generally applicable
`
`information.”
`
`[PMC Resp., pp. 37-39; Russ Decl., W100403] Previously,
`
`I
`
`identified the “generally applicable information” as information in Higgins that
`
`might be common to several users.
`
`[Neuhauser I, {[96] Specifically, I identified
`
`22
`
`

`
`information such as the window headers “LIMIT”, “NEWS”, “Monitor” and
`
`“Quick-Quote” because these are shown at each workstation. [Neuhauser I, 1196]
`
`44.
`
`In the preferred embodiment Exotic Meals of India [‘l3l’ 24l:50-
`
`26S:25] the generally applicable information might for example be the common
`
`text related to a coupon offer [‘131, 255246-60] because this information is
`
`displayed to all users. The corresponding aspect of Higgins would be the headers
`
`on the individual windows and the lines that separate the windows. As best
`
`understood, PMC and Dr. Russ do not believe that this is generally applicable
`
`information because it is always displayed and is not processed together with the
`
`completion o

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