Roman, Kendyl A.
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`CBM2015-00179
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`May 3, 2016
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`1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
` IBG LLC; INTERACTIVE BROKERS LLC;
`TRADESTATION GROUP, INC.; TRADESTATION SECURITIES,
` INC.;
` TRADESTATION TECHNOLOGIES, INC.; and
` IBFX. INC.
` Petitioners,
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
` Patent Owner
` __________
` Case CBM2015-00179
` U. S. Patent 7,533,056
` __________
` Washington, D.C.
` May 3, 2016
` CROSS-EXAMINATION
` KENDYL A. ROMAN
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`
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`Page 1 of 323
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`TRADING TECH EXHIBIT 2165
`TRADESTATION ET AL. v. TRADING TECH
`CBM2016-00051
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`
`
`CBM2015-00179
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`May 3, 2016
`
`1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
` IBG LLC; INTERACTIVE BROKERS LLC;
`TRADESTATION GROUP, INC.; TRADESTATION SECURITIES,
` INC.;
` TRADESTATION TECHNOLOGIES, INC.; and
` IBFX. INC.
` Petitioners,
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
` Patent Owner
` __________
` Case CBM2015-00179
` U. S. Patent 7,533,056
` __________
` Washington, D.C.
` May 3, 2016
` CROSS-EXAMINATION
` KENDYL A. ROMAN
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`
`
`Page 1 of 323
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`TRADING TECH EXHIBIT 2165
`TRADESTATION ET AL. v. TRADING TECH
`CBM2016-00051
`
`
`
`Roman, Kendyl A.
`
`CBM2015-00179
`
`May 3, 2016
`
`2
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` Cross-Examination of KENDYL A. ROMAN, a
`witness herein, called for examination by counsel
`for Patent Owner in the above-entitled matter,
`pursuant to notice, the witness being duly sworn by
`SUSAN L. CIMINELLI, CRR, RPR, a Notary Public in and
`for the District of Columbia, taken at the offices
`of Sterne Kessler Goldstein Fox, 1100 New York
`Avenue, N.W., Washington, D.C. at commencing at 9:14
`a.m.
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`Roman, Kendyl A.
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`CBM2015-00179
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`May 3, 2016
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`3
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`APPEARANCES:
`On behalf of the Patent Owner:
` LEIF R. SIGMOND, JR., ESQUIRE
` MICHAEL GANNON, ESQUIRE
` McDonnell Boehnen Hulbert & Berghoff, LLP
` 300 South Wacker Drive
` Chicago, Illinois 6066-6709
` (312) 913-0001
` sigmond@mbhb.com
` gannon@mbhb.com
` -and-
` RACHEL L. EMSLEY, ESQUIRE
` Finnegan, Henderson, Farabow, Garrett &
` Dunner, LLP
` Two Seaport Lane
` Boston, Massachusetts 02210-2001
` (617) 312-0852
` rachel.emsley@finnegan.com
`On behalf of the Petitioners:
` RICHARD M. BEMBEN, ESQUIRE
` ROBERT SOKOHL, ESQUIRE
` Sterne Kessler Goldstein Fox
` 1100 New York Avenue, N.W.
` Washington, D.C. 20005
` (202) 371-2600
` rbemben@skgf.com
` rsokohl@skgf.com
`ALSO PRESENT:
` Steve Borsand
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`Roman, Kendyl A.
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`CBM2015-00179
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`May 3, 2016
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`4
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` C O N T E N T S
`KENDYL A. ROMAN EXAMINATION
` By Mr. Sigmond 5
`
` Afternoon Session - Page 137
`
` E X H I B I T S
`EXHIBIT NO. PAGE NO.
`Exhibit 1032 Declaration of Kendyl A. Roman
` U.S. Patent No. 7,533,056 11
`Exhibit 1033 (IBG) Roman CV 28
`Exhibit 1010 (IBG) U.S. Patent 5,136,501 34
`Exhibit 1001 (IBG) U.S. Patent 7,533,056 22
`Exhibit 1008 (IBG) Togher reference 22
`Exhibit 1034 (IBG) List of Materials Considered
` for '056 patent 13
`Exhibit 1004 (IBG) Tokyo Stock Exchange
` Futures/Option Purchasing System
` Trading Terminal Operation Guide 36
`Exhibit 1014 Tab D
`Exhibit 2103 Roman Patent 6,803,931 B1 96
`*Exhibits retained.
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`Roman, Kendyl A.
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`CBM2015-00179
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`May 3, 2016
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` P R O C E E D I N G S
`Whereupon,
` KENDYL A. ROMAN,
`was called as a witness by counsel for Patent Owner,
`and having been duly sworn, was examined and
`testified as follows:
` CROSS EXAMINATION
`BY MR. SIGMOND:
` Q. Good morning, Mr. Roman. My name is Leif
`Sigmond. I represent Trading Technologies and I'm
`going to be taking your deposition this morning.
`Can you please state your full name and address for
`the record?
` A. Kendyl Alan Roman, and there is an accent
`on the A. Business address or home address?
` Q. Business address would be great.
` A. 3277 Kifer, K-I-F-E-R, Road, Santa Clara,
`California.
` Q. You understand you were just sworn in
`under oath this morning.
` A. Yes.
` Q. And is there any reason that you --
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`=anything that would prevent you from testifying
`truthfully?
` A. No.
` Q. Are you on any medication that would
`affect your ability to give me full and complete and
`truthful testimony?
` A. No.
` Q. I know you've been deposed before, right?
` A. Yes.
` Q. About -- and one rule is I know you're
`anxious to answer, and I appreciate that, but let me
`finish so that this court reporter doesn't have a
`rough time today. How many times have you been
`deposed?
` A. I think it's a little over 40 days of
`depositions.
` Q. And have you testified at trial?
` A. Yes.
` Q. How many times?
` A. Several times. Both in patent and jury
`trials and trade secret, copyright trials, as well
`as other proceedings.
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`Roman, Kendyl A.
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`CBM2015-00179
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`May 3, 2016
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` Q. Those 40 days of deposition, what
`percentage of them were -- had to do with patent
`cases?
` A. My best estimate would be about 60
`percent.
` Q. Those depositions, were they all as an
`expert witness?
` A. Yes.
` Q. Have you ever testified as a fact
`witness?
` A. Well, I know in some of the cases, for
`example, one case I worked on my own patent was
`actually cited as prior art on the face of one of
`the patents, and so I've been in a dual role where
`primarily I was engaged as an expert witness, but
`there were a few things that I was the original
`patent witness on. But it was all -- all under the
`expert witness rules.
` Q. So you know -- you know the drill. But I
`will be asking you a series of questions and I guess
`I would just ask if you don't understand the
`question, please ask me for clarification. If you
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`CBM2015-00179
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`May 3, 2016
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`give an answer I'm going to think you understood the
`question and gave a full truthful answer. Is that
`fair?
` A. That's fair.
` Q. You know, if you want a break, let me
`know. I guess I'd only ask that we try to finish
`the answer that's pending before we take a break.
` A. Yes.
` Q. What did do you to prepare for your
`deposition today?
` MR. BEMBEN: I caution the witness not to
`divulge any privileged information.
` THE WITNESS: So I reviewed my
`declaration, and the exhibits that were supportive
`of that, like my CV. I also reviewed the petition
`and Patent Owner's response and the institution
`decision.
`BY MR. SIGMOND:
` Q. When did you do this?
` A. Yesterday.
` Q. Did you prepare for your deposition at
`all before yesterday?
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`CBM2015-00179
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`May 3, 2016
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` A. Not anything that was specific. I made
`arrangements to travel here and those kinds of
`things but the actual preparation was all day
`yesterday.
` Q. I understand. Who was present during
`your preparation?
` A. Well, for a lot of it, it was just myself
`reading in my hotel room, but I did meet with
`counsel.
` Q. How long did you meet with counsel?
` A. It was around seven hours. Maybe 10:30
`to 5, I think.
` Q. And besides that, how much time did you
`spend preparing besides the seven hours?
` A. I probably spent another five or six
`hours in the hotel room.
` Q. During these meetings with counsel, who
`else -- which counsel in particular were present?
` A. I don't know if it's privileged or not
`but these two fine gentlemen.
` Q. The two attorneys sitting to your left?
` A. Yes.
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`CBM2015-00179
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`May 3, 2016
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` Q. Anyone else?
` A. I don't recall anyone else being in the
`meeting.
` Q. Did you discuss your preparation with
`anyone after you prepared?
` A. No.
` Q. Besides what you've already told me, did
`you review any other documents in preparation for
`your deposition?
` A. I guess the problem I have is that it
`would have -- I think it's privileged.
` MR. BEMBEN: You can just answer yes or
`no.
` THE WITNESS: Okay. Yes.
`BY MR. SIGMOND:
` Q. Did you review -- did you review anything
`from the re-examination of the '056 patent?
` MR. BEMBEN: Objection. The details of
`our conversation and the documents we discussed are
`confidential.
` MR. SIGMOND: Are you instructing him not
`to answer?
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` MR. BEMBEN: I'm instructing him not to
`answer, yes.
`BY MR. SIGMOND:
` Q. Are you going to accept that instruction?
` A. Yes.
` Q. As we go on today if he instructs you not
`to answer, is it safe to assume that you're going to
`accept his instruction?
` A. Yes.
` Q. Have you reviewed a declaration of
`Christopher Thomas from the re-examination of the
`'056 patent?
` MR. BEMBEN: Objection. Do not answer
`the question.
` MR. SIGMOND: I'm sorry. Was that --
` MR. BEMBEN: I'm instructing him not to
`answer the question. Yes.
`BY MR. SIGMOND:
` Q. Let me show you what's previously been
`marked. And I'm new at this, so I think it's
`previously been marked as Exhibit 1032.
` (Exhibit No. 1032 was
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` marked for identification.)
`BY MR. SIGMOND:
` Q. Mr. Roman, is that the declaration you
`reviewed yesterday?
` A. Yes, it is.
` Q. Did you review any of your other
`declarations yesterday?
` A. No.
` Q. You were deposed in the TD Ameritrade
`CBM, correct?
` A. Yes.
` Q. Did you review the transcript from that?
` A. No, I did not. Not in the last year and
`I don't recall doing it after the deposition either.
` Q. Did you review any other documents
`besides your declaration, the attachments that
`refreshed your recollection in any way?
` MR. BEMBEN: Objection. Again, the
`documents that we reviewed or he reviewed yesterday
`are privileged. It's attorney work product. Do not
`answer the question. I'm instructing you not to.
` MR. SIGMOND: Actually, so I'm not going
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`to get into an argument with you here but if it
`refreshes his recollection, I believe I'm entitled
`to know about it and I'm really just right now
`asking a yes or no question.
` MR. BEMBEN: You can answer yes or no but
`the details are confidential.
` THE WITNESS: Well, I -- I believe the
`answer is no, but I could confirm that if I got my
`list of materials.
`BY MR. SIGMOND:
` Q. Sure. Why don't we look at that. I
`think that's Exhibit 1034, so I'm going to put that
`in front of you.
` (Exhibit No. 1034 was
` marked for identification.)
` THE WITNESS: And then can you repeat the
`question?
`BY MR. SIGMOND:
` Q. Did you review anything in addition to
`what's on that that helped refresh your
`recollection?
` MR. BEMBEN: Objection. Asked and
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`Roman, Kendyl A.
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`CBM2015-00179
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`May 3, 2016
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`answered.
`BY MR. SIGMOND:
` Q. He asked me to repeat the question.
` A. Right. So having looked at this, I'll
`confirm the answer is no.
` Q. And did you review everything on Exhibit
`1034 yesterday?
` MR. BEMBEN: Objection. Asked and
`answered.
` THE WITNESS: I will say I looked at this
`list but I did not look at every one of these
`documents. A good example would be item 37. It's
`Inside MacIntosh. I didn't look at that. And there
`are a few others.
`BY MR. SIGMOND:
` Q. Can you tell me the others you did not
`look at?
` MR. BEMBEN: Objection. The documents
`that we looked at yesterday are work product. You
`do not need to answer that question. Do not.
` MR. SIGMOND: I think he just told me one
`so I think he has at least waived that.
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` MR. BEMBEN: He answered just your
`question. He answered one. It's work product. He
`is not answering any more.
` MR. SIGMOND: Okay. I object to your
`instruction but we can deal with that later.
` MR. BEMBEN: Okay.
`BY MR. SIGMOND:
` Q. Have you reviewed the deposition of
`Mr. Rho in this proceeding?
` MR. BEMBEN: Again, objection. Work
`product. Don't answer the question.
` MR. SIGMOND: You're not going to let him
`answer if he reviewed a deposition of another
`expert?
` MR. BEMBEN: No. It's work product.
`What we discussed yesterday and what we reviewed
`yesterday is work product.
` MR. SIGMOND: I object to your
`instruction and I don't want to take up the day
`objecting, so can I have a standing objection to
`your instructions not to answer?
` MR. BEMBEN: Yes.
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`May 3, 2016
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` MR. SIGMOND: Thank you.
`BY MR. SIGMOND:
` Q. Now, let's look at 1032. That's your --
`I'm going to use that number a lot today, Mr. Roman.
`That's your declaration. So if I use that
`interchangeably with your declaration, if I just say
`your declaration, you'll understand what I mean
`today, right?
` A. Right. And today's deposition is limited
`to the '056 so for today's transcript, my
`declaration is this Exhibit 1032.
` Q. Great. Thanks. I think we are on the
`same page there. So if you look at page 92 of this
`declaration, is that your signature?
` A. Yes.
` Q. How long did you spend working on this
`declaration?
` A. I think the best answer is at least a
`hundred hours.
` Q. Do you have records of how long you
`spent?
` A. I guess the problem I have with your
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`Roman, Kendyl A.
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`CBM2015-00179
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`May 3, 2016
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`question is I worked on a number of declarations of
`related patents, and all of that work led to the
`words that I have written and put into this
`declaration. And not only the words that are in the
`declaration, but there was hundreds of hours of
`research and analysis that went into this final
`report.
` And so the problem I have is the work was
`spread across multiple different patents, but they
`are related and there is multiple prior art
`references which are related. And so I don't have
`records that break it out on a patent-by-patent
`basis. It's a collection of work that all led to
`these opinions.
` Q. When you say patent-by-patent basis, just
`so the record is clear, the patents you're referring
`to are the TT patents?
` A. Yes.
` Q. Did you actually write this report?
` A. Yes.
` Q. You typed it?
` A. Yes. Yes. So I would say that I typed
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`in -- well, I'd say I typed in the majority of the
`words of this report in an original form. This
`report, of course, was done after I had done others,
`so to a large degree, there was cutting and pasting
`of relevant sections from an earlier report into
`this report. So this report was cut and paste, put
`together. Some of that was done by clerical staff.
`But the final report was edited by me, signed by me.
` Q. You say clerical staff, do you mean your
`clerical staff or the law firm's?
` A. Both my clerical staff an the law firm
`but primarily I think it would have been paralegals.
` Q. I'm just going to remind you one more
`time. You're doing a really good job trying to
`answer my questions but let me finish before you
`start just because the hardest working person in the
`room needs to get it all down.
` Did anyone on your staff help you with
`this report?
` MR. BEMBEN: Objection. Work product.
`You don't need to answer that.
` THE WITNESS: I don't have to answer.
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` MR. SIGMOND: So if you're instructing
`him not to answer, I'm not telling you -- just
`instruct. I didn't know, so you're instructing him
`not to answer?
` MR. BEMBEN: Instructing him not to
`answer.
`BY MR. SIGMOND:
` Q. Do you have staff that work for you?
` A. Yes.
` Q. And do you have staff that's helped work
`on the Trading Technologies matters, yes or no?
` A. Yes.
` Q. If I asked who they were, would -- who
`are they?
` A. So I have a group of people that I have
`worked with for almost 20 years. And we've have
`done research and development together. We've done
`traditional consulting together. And as I moved
`into litigation consulting, they have moved with me.
`And this particular case, the question was who?
` Q. Yes.
` A. Okay. I think this case, the only one
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`for sure I know would have been involved would have
`been David Hoffman.
` Q. What role did he play?
` A. I -- he helps with research and
`acquisition of some of the documents. So the last
`two entries on the list are actually books that I
`have had for a long time and I generally turn to in
`a case that's related to graphics. And so he
`probably helped prepare those two exhibits.
` Q. What do you mean prepare?
` A. Well, they are books and someone needs to
`photocopy the pages and trim the edges off so you
`don't have big black spots and piece it together
`into a PDF and make sure that the right pages are
`included in the particular version.
` So in one case I might use a page that
`talks about the frame and another page I may use a
`page that talks about memory management so that,
`pull out the pages that I instruct him to pull out
`so that the pages that are relevant to a particular
`case get produced as an exhibit.
` Q. Did Mr. Hoffman do any substantive work?
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` MR. BEMBEN: Objection. That's work
`product. Do not answer.
`BY MR. SIGMOND:
` Q. Anything else on this list prepared by
`Mr. Hoffman?
` A. Hoffman.
` Q. Hoffman. Sorry about that.
` A. Let's see. I know I have 19, but I can't
`say that he was the one that prepared it. Sometimes
`I do it myself. And I think I have 20 in my library
`as well, so one of those may have come from -- let's
`see. I think -- I know I have the Microsoft
`Computer Dictionary. That's one that I use as well.
`I don't recall specifically.
` Q. Let's go to the first page of this
`Exhibit 1034. We see it lists starting with numbers
`3, 4 and 5. Do you see those. The first is the --
`those three relate to the TSE, correct?
` A. Right.
` Q. Where did you get those materials?
` A. I received those, those particular
`documents from counsel.
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` MR. BEMBEN: Again, I caution the witness
`not to divulge any privileged communications. You
`can continue.
`BY MR. SIGMOND:
` Q. Number 6. Do you remember where you got
`number 6?
` A. Do you have a copy of Togher?
` Q. I do. I believe that's Exhibit 1008.
` A. And do you also have a copy of the '056
`patent.
` Q. The '056 patent I believe is Exhibit
`1001. Why don't I put 1001 and 1008 in front of
`you.
` (Exhibit No. 1001, 1008 were
` marked for identification.)
`BY MR. SIGMOND:
` Q. So your specific question is regarding
`Togher or the '055?
` A. Correct.
` Q. Item number 6 on Exhibit 1034?
` A. Right. So that's one of the patents of
`-- if you look on page 2 of IBG1001, which is the
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`'056 patent, you'll see that Togher is listed
`roughly a dozen lines down. And so in my review of
`the patent, I usually look at some of the cited
`prior art and this was one of those.
` Q. Did you do any search in relation to this
`report?
` MR. BEMBEN: Objection. Relevance.
` THE WITNESS: I spent a lot of time doing
`my own independent research, and that included many
`searches.
`BY MR. SIGMOND:
` Q. Did you know which, if any of these
`references listed in 1034 came from your search?
` A. Well, I mentioned before, the Open Look
`and X Windows are documents I believe were in the
`library. Microsoft Computer Dictionary, I think is
`in my library.
` Q. And can you just refer -- sorry, sir, the
`numbers just so we --
` A. So in IBG 10, 19 and 20. I believe I
`pointed those out and at least one of those, I know
`I have them in my library but I think counsel was
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`able to find them, you know, so I'm not exactly
`sure. I know Inside MacIntosh, that is actually the
`book that's been in my library since 1985. That's
`number 37. The Oxford Dictionary, number 38.
`Microsoft Dictionary was 25. So Togher, Schott,
`Silverman and Gutterman, I think are all on the
`patent. I didn't look to verify the exact numbers.
`They all show up in one form or another. And let's
`see. I think that's it.
` MR. BEMBEN: I just want to again just to
`caution the witness not to divulge any
`communications that we've had.
` THE WITNESS: Oh. The other thing --
`well, the other thing I'll mention is there is a
`number of documents I cite to in my declaration that
`aren't in the list of materials. Like Microsoft
`Chart. But those are mentioned as supporting
`information and Microsoft Chart again is a program I
`had, so that's paragraph 71 of my declaration,
`Exhibit 1032. I talk about Microsoft Chart and
`Excel.
` I said I have versions of Microsoft
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`Chart, the first of which I acquired in 1994. I
`also mentioned Tufte, which we do, that is Exhibit
`1016, but that's one of the things I found in my
`search.
`BY MR. SIGMOND:
` Q. You mentioned in your testimony today in
`my library.
` A. Yes.
` Q. Could you describe that for me.
` A. So --
` MR. BEMBEN: Objection. Relevance.
` MR. SIGMOND: When he objects he is just
`making his objection for the record.
` MR. BEMBEN: You can answer.
` THE WITNESS: Right. So the address I
`gave is my forensic lab in Santa Clara and I
`constructed it specifically so that I would have a
`secure facility to do the type of analysis that I
`had started doing as an expert witness.
` And in the lab, I have a collection of
`books, and that includes dictionaries, encyclopedias
`that are technical, computer related dictionaries,
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`and I also have texts, so things like Inside
`MacIntosh, and dictionaries, encyclopedias,
`technical documents and part of my research is to go
`through the documents in my library so --
`BY MR. SIGMOND:
` Q. Did you conduct any searches outside of
`your own library?
` A. Yes. I also did searches on the
`Internet. And I also looked for books that were
`trading specific from 1999. And --
` Q. Did you find any books from 1999 that
`were trading specific?
` A. Yes. There were quite a number.
`Specifically, and I don't know if it's referenced,
`well, it is referenced in this. I talk about my
`work on the Tradescape case back in 1999. That is a
`trade secret copyright case, which was specifically
`relating to day trading. So one of the things I
`wanted to get and again it was for one of those
`first declarations that I did was some pictures of
`the Tradescape graphical user interfaces.
` And because when I had reviewed the
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`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegal
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