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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
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`BLOOMBERG INC.; BLOOMBERG L.P.;
`BLOOMBERG FINANCE L.P.;
`THE CHARLES SCHWAB CORPORATION;
`CHARLES SCHWAB & CO., INC.;
`E*TRADE FINANCIAL CORPORATION; E*TRADE SECURITIES LLC;
`E*TRADE CLEARING LLC; OPTIONSXPRESS HOLDINGS INC.;
`OPTIONSXPRESS, INC.; TD AMERITRADE HOLDING CORP.;
`TD AMERITRADE, INC.; TD AMERITRADE IP COMPANY, INC.; and
`THINKORSWIM GROUP INC.
`Petitioners,
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`v.
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`MARKETS-ALERT PTY LTD.
`Patent Owner.
`____________
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`Case CBM2013-00005 (JYC)
`Patent 7,941,357
`____________
`
`
`Before JAMESON LEE, SALLY C. MEDLEY, and JONI Y. CHANG,
`Administrative Patent Judges.
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`
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`PATENT OWNER MARKETS-ALERT
`MOTION TO EXCLUDE PURSUANT TO 37 C.F.R. §42.64
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`834609
`834609.2
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`TABLE OF CONTENTS
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`Page
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`STATEMENT OF REQUESTED RELIEF .................................................... 1
`I.
`STATEMENT OF MATERIAL FACTS ........................................................ 1
`II.
`III. STATEMENT OF REASONS FOR REQUESTED RELIEF ........................ 3
`A. Applicable Law & Principles ................................................................ 3
`B.
`Conclusory Opinions By Kursh Should Be Excluded .......................... 6
`C. New References Are Needlessly Cumulative ..................................... 12
`D. New References Were Not of Record Or Known ............................... 14
`IV. CONCLUSION .............................................................................................. 15
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`TABLE OF AUTHORITIES
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`Page
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`Federal Cases
`ActiveVideo Networks, Inc. v. Verizon Communications, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012) ............................................................... 4, 5, 9, 10
`Dynacore Holdings Corp. v U.S. Philips Corp.,
`363 F.3d 1263 (Fed. Cir. 2004) .............................................................................. 5
`Innogenetics, N.V. v. Abbott Labs.,
`512 F.3d 1363 (Fed. Cir 2008) ............................................................................... 5
`KSR International Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ............................................................................................... 4
`Microstrategy Inc. v. Business Objects, S.A.,
`429 F.3d 1344 (Fed. Cir. 2005) .............................................................................. 4
`Sitrick v. Dreamworks, LLC,
`516 F.3d 993 (Fed. Cir. 2008) ................................................................................ 5
`Federal Statues
`37 C.F.R. §42.62 ........................................................................................................ 3
`37 C.F.R. §42.64 ........................................................................................................ 1
`37 C.F.R. §42.65(a) .................................................................................................... 3
`37 C.F.R. 42.64(c) ...................................................................................................... 3
`Fed. R. Evid. 402 ..................................................................................................... 14
`Fed. R. Evid. 403 ....................................................................................................... 6
`Fed. R. Evid. 702 ....................................................................................................... 4
`Other Authorities
`77 Fed. Reg. 48612 at 48633 ................................................................................... 14
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`Case No. CBM2013-00005 (JYC)
`Patent 7,941,357
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`I.
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`STATEMENT OF REQUESTED RELIEF
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`Pursuant to 37 C.F.R. §42.64 and Patent Owner Markets-Alert Objections
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`To Evidence (“Objections”), Markets-Alert hereby seeks the exclusion of
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`Paragraph Nos. 7, 12-15, 17, 32-34, 44, and 46-57 of Exhibit No. 1043 (“Second
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`Kursh Decl.”) and newly submitted references in Exhibit Nos. 1036-1041 (“New
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`References”) for failing to comport with the Federal Rules of Evidence.
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`II.
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`STATEMENT OF MATERIAL FACTS
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`(1) On October 2, 2013, Petitioners submitted the Second Kursh Decl.
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`and New References in support of Petitioner’s Opposition to Patent Owner
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`Markets-Alert Motion to Amend (Paper 50) (“Opposition”) and Petitioner’s Reply
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`to Patent Owner Markets-Alert Response (Paper 51) (“Reply”). Markets-Alert
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`timely served its Objections to this evidence on October 8, 2013.
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`(2) The Second Kursh Decl. contains testimony in the form of alleged
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`expert opinions at Paragraph Nos. 7, 12-15, 17, 32-34, 44, and 46-57.
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`(3)
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`Petitioners cite previously submitted Exhibit Nos. 1006-1014 and
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`1025-1033 as teaching “methods of technical analysis-based stock market data
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`monitoring and alerting.” Ex. 1043 at 31.
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`(4) On March 29, 2013, the Board held that these references (among
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`others to which Petitioners no longer cite) presented grounds for unpatentability
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`redundant to the four grounds instituted. Decision, Paper 18, at 40.
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`(5)
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`Petitioners cite previously submitted Exhibit No. 1004 (Satow) as
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`teaching “server-based, scalable and redundant,” Ex. 1043 at 27, and a “network of
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`computers,” Ex. 1002 at 52.
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`(6)
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`Petitioners cite Satow as an anticipating reference for a “network-
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`based stock trading system” and “technical analysis,” Ex. 1002 at 51-56, and
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`“monitors stock market data in real-time and executes a trade upon satisfaction of
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`the selected criteria, with the user concurrently being notified in real time of trade
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`execution,” Ex. 1043 at 34.
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`(7)
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`Petitioners cite previously submitted Exhibit No. 1033 (eSignal) as
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`teaching “a server-based, scalable and redundant network.” Ex. 1043 at 40.
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`(8)
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`Petitioners submit New References in Exhibit Nos. 1037 (Chapraty),
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`1038 (Keilani), 1039 (Ambrose), and 1040 (Lim) solely for their alleged teaching
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`of “server-based, scalable and redundant networks.” Ex. 1043 at 41-43.
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`(9)
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`Petitioners submit New Reference in Exhibit No. 1041 (Toy) for its
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`alleged teachings of a “method and system for monitoring stock market
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`information and notifying users in real time when an event of interest occurs…
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`over a network of computers.” Ex. 1043 at 47.
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`III. STATEMENT OF REASONS FOR REQUESTED RELIEF
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`A. Applicable Law & Principles
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`Markets-Alert recognizes that the Board is fully capable of weighing the
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`credibility of the evidence and arguments presented in this proceeding. However,
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`as provided under 37 C.F.R. §42.62, the Federal Rules of Evidence (FRE) apply to
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`the current proceedings to ensure that evidence is reliable enough to merit full
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`consideration by the Board. Markets-Alert respectfully submits that these
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`evidentiary objections pursuant to FRE should inform the Board’s weighing of the
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`evidence submitted in this proceeding, whether or not the Board formally grants
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`any exclusion. See 37 C.F.R. §42.65(a) (“Expert testimony that does not disclose
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`the underlying facts or data on which the opinion is based is entitled to little or no
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`weight.”).1
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`Evidence in the form of opinion testimony by an expert witness must meet
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`the following requirements: “(a) the expert’s scientific, technical, or other
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`1 Mindful of the Board’s admonition that a motion to exclude should not address
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`the credibility or weight of evidence, Markets-Alert strictly adheres to 37 C.F.R.
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`42.64(c) to preserve its objection by identifying the objectionable testimony and
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`the FRE grounds for the evidentiary objection. As the Board will note, Markets-
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`Alert does not herein present substantive arguments about the evidence.
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`specialized knowledge will help the trier of fact to understand the evidence or to
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`determine a fact in issue; (b) the testimony is based on sufficient facts or data;
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`(c) the testimony is the product of reliable principles and methods; and (d) the
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`expert has reliably applied the principles and methods to the facts of the case.”
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`FRE 702. Therefore, the Second Kursh Decl. must comport with these
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`requirements to be sufficiently reliable as to merit consideration by the Board.
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`The Federal Circuit has held that, while an expert may provide testimony in
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`the form of an opinion, it may not be conclusory. “While an expert need not
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`consider every possible factor to render a reliable opinion, the expert still must
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`consider enough factors to make his or her opinion sufficiently reliable in the eyes
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`of the court.” Microstrategy Inc. v. Business Objects, S.A., 429 F.3d 1344, 1355
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`(Fed. Cir. 2005). In particular, the Federal Circuit has held that expert testimony
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`on patentability that is “essentially a conclusory statement that a person of ordinary
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`skill in the art would have known… how to combine any of a number of references
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`to achieve the claimed invention… is not sufficient and fraught with hind-sight
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`bias.” ActiveVideo Networks, Inc. v. Verizon Communications, Inc., 694 F.3d
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`1312, 1327 (Fed. Cir. 2012) (citing KSR International Co. v. Teleflex Inc., 550
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`U.S. 398, 418 (2007) (“A patent composed of several elements is not proved
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`obvious by merely demonstrating that each of its elements was, independently,
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`known in the prior art.”) and Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363,
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`1373-74 (Fed. Cir 2008) (“Such vague testimony would not have been helpful to a
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`lay jury in avoiding the pitfalls of hindsight that belie a determination of
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`obviousness.”)).
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`Even an expert must “explain how specific references could be combined,
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`which combination(s) of elements in specific references would yield a predictable
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`result, or how any specific combination would operate or read on the asserted
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`claims.” ActiveVideo, 694 F.3d at 1327; see also Sitrick v. Dreamworks, LLC, 516
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`F.3d 993, 1001 (Fed. Cir. 2008) (“Conclusory expert assertions cannot raise triable
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`issues of material fact on summary judgment.”); and Dynacore Holdings Corp. v
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`U.S. Philips Corp., 363 F.3d 1263, 1278 (Fed. Cir. 2004) (“It is well settled that an
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`expert's unsupported conclusion on the ultimate issue of infringement is
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`insufficient to raise a genuine issue of material fact, and that a party may not avoid
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`that rule simply by framing the expert's conclusion as an assertion that a particular
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`critical claim limitation is found in the accused device.”).
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`The Federal Circuit has made clear that generic testimony on motivation to
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`combine is not acceptable. The expert must explain “why a person of ordinary
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`skill in the art would have combined the elements from specific references in the
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`way the claimed invention does.” ActiveVideo, 694 F.3d at 1328 (rejecting
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`testimony: “The motivation to combine would be because you wanted to build
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`something better. You wanted a system that was more efficient, cheaper, or you
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`wanted a system that had more features, makes it more attractive to your
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`customers….”).
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`In addition, evidence in this proceeding is subject to exclusion if “its
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`probative value is substantially outweighed by a danger of one or more of the
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`following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
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`wasting time, or needlessly presenting cumulative evidence.” FRE 403.
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`Cumulative prior art references particularly warrant exclusion because they add
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`nothing to assist the Board in adjudicating the facts or issues, but rather bog down
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`the review and risk creating prejudice and confusion.
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`B. Conclusory Opinions By Kursh Should Be Excluded
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`Very little in the Second Kursh Decl. reflects the application of reliable
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`analysis to accurate, citable facts to reach a reasoned opinion. Instead, the bulk of
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`the Second Kursh Decl. (as well as Kursh’s previous declaration) is made of
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`conclusory opinions, often on ultimate legal issues, of precisely the type that the
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`Federal Circuit has deemed improper. Fundamentally, Petitioners are telling the
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`Board that, since Kursh is an expert, the Board does not need to see any reasoning
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`and his conclusions should be accepted without scrutiny. This usurps the Board’s
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`purview.
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`Although the Board is fully capable of distinguishing between reliable
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`testimony and conclusory testimony, in order to streamline the evidentiary morass
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`in this proceeding, Markets-Alert respectfully draws the Board’s
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`attention to specific testimony by Petitioners’ expert that is so inherently unreliable
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`as to merit exclusion:
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`Paragraph 7: Kursh opines that “[t]here is a difference between providing
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`a real-time notification to a human user compared to merely providing the
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`notification to a device, which may or may not be monitored by a user.” Kursh
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`does not explain how he reaches this conclusion or the nature of this difference.
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`This testimony is conclusory and does not help the Board to understand or
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`determine whether or not the difference actually affects any fact in issue regarding
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`claim scope.
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`Paragraph 12: Kursh construes network of computers. He provides no
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`explanation for this construction (e.g., how he derived it or any support upon
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`which he relies). This testimony is conclusory and does not help the Board to
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`understand or determine any fact in issue regarding the proper construction of this
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`Paragraphs 13 and 14: Kursh opines that the language of new claim 5
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`“more broadly encompasses non-periodic application of watch data to received
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`stock market data.” He does not explain in detail how he reached this conclusion
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`or the meaning of “non-periodic.” This testimony is conclusory and does not help
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`the Board to understand or determine any fact in issue regarding the scope of new
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`claim 5.
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`Paragraph 15: Kursh opines that “the ‘357 Patent does not disclose watch
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`data where more than one technical analysis formula defines a single event.” The
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`evidence of record pointing to multiple disclosures of plural formulae so blatantly
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`discredits this testimony that it should be deemed unreliable. See e.g. Ex. 1001 at
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`5:6-9 (originally issued claim 1 reciting watch data defining an event and
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`specifying technical analysis formulae) (emphasis added).
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`Paragraph 17: Kursh opines that “caching” is not described. He provides
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`no analysis why descriptions of data storage do not support caching. His testimony
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`is conclusory and does not help the Board to understand or determine any fact in
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`issue regarding support of new claim 6.
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`Paragraph 32: Kursh opines that “[t]hose references teach applying more
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`than one technical analysis formula to stock market data in real time.” He provides
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`no foundation for his opinion with respect to “those references” in Exhibits Nos.
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`1005 (S&C Review), 1006-1013, 1014 (Opening Bell), and 1025-1033, except for
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`two snippets from Exhibit Nos. 1007 and 1009. Except with respect to Exhibits
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`Nos. 1007 and 1009, Kursh’s testimony lacks sufficient facts, data or analysis to
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`reliably help the Board to understand or determine what these references actually
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`teach.
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`Paragraph 33: Kursh opines: “A person of ordinary skill in the art at the
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`time would have found it obvious to combine the above identified prior art known
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`technical analysis methods with a trading platform as in Satow to arrive at the
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`claimed methods, e.g., as recited in proposed claim 5. Such a combination would
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`be viewed by a person of skill as representing use of known methodologies with a
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`known system, so as to produce nothing beyond expected results.” This is a
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`conclusion couched as an explanation. As discussed above, Kursh provides no
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`foundation regarding “the above identified prior art” in the preceding paragraphs
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`and provides no basis or explanation in this paragraph for how specific references
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`could be combined, which combination(s) of elements in specific references would
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`yield a predictable results, or how any specific combination would operate or read
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`on the asserted claims. ActiveVideo, 694 F.3d at 1327.
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`He also does not specifically explain why a person of ordinary skill in the art
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`would have combined the elements from specific references in the way the claimed
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`invention does. ActiveVideo, 694 F.3d at 1328. His generic statement that “[s]uch
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`a combination would be viewed by a person of skill as representing use of known
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`methodologies with a known system, so as to produce nothing beyond expected
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`results” is no different from testimony that the Federal Circuit has deemed
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`insufficient. Id. (rejecting testimony: “The motivation to combine would be
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`because you wanted to build something better. You wanted a system that was
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`more efficient, cheaper, or you wanted a system that had more features, makes it
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`more attractive to your customers….”). With respect to Exhibit Nos. 1005, 1006,
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`1008, 1010-1014, and 1025-1033, Kursh’s testimony is conclusory and does not
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`help the Board to understand or determine any fact in issue regarding what is the
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`alleged combination of references or the requisite motivation to combine.
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`Paragraph 34: Kursh opines: “One of skill would be motivated to enhance
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`the functionality of the Satow platform in a known manner by incorporating
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`aspects of technical analysis based stock market monitoring and event
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`identification, as in the prior art noted above. As an example of the combination,
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`the matching logic in the matching engine 32 of Satow could be configured to
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`receive and execute a trade order based on user-defined technical analysis criteria.”
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`With respect to “the prior art noted above” in Exhibit Nos. 1005, 1006, 1008,
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`1010-1014, and 1025-1033, Kursh previously failed to provide any foundation and
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`does not provide additional foundation in this paragraph. Specifically, except for
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`conclusorily asserting that Satow could be reconfigured, which is just a conclusion
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`couched as an explanation, he fails to explain how this reconfiguration could be
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`done. Again, like Paragraph 33, Kursh’s testimony (including his generalized
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`conclusion in Paragraph 35) lacks foundation, is conclusory and does not help the
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`Board to understand or determine any fact in issue regarding what is the alleged
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`combination of references or the requisite motivation to combine.
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`Paragraph 44: Kursh opines: “One of skill would have found it obvious to
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`include technical analysis stock market data monitoring and alerting
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`methodologies, as described in S&C Review (Ex. 1005) or Opening Bell (Ex.
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`1014), using a server-based network that is scalable and redundant. Such a
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`combination would be viewed as combining known methodologies, with known
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`computer network systems, so as to achieve nothing more than expected results.
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`eSignal (Ex. 1033) specifically teaches this.” This testimony mirrors the
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`conclusory nature of Paragraphs 32-35. Kursh provides none of the explanation or
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`reasoning required by the Federal Circuit. Id. at 1327-28. Indeed, Paragraphs 33
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`and 44 stand in sharp contrast to Paragraphs 52-57 where Kursh offers at least a
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`semblance of explanation for the alleged combination of New References Toy and
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`Kraemer. Thus, this testimony lacks foundation, is conclusory and does not help
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`the Board to understand or determine any fact in issue regarding obviousness.
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`Paragraph 46: Kursh opines that “each feature of the proposed new claims
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`5-8 are taught or suggested by Toy, taken either alone or in combination with other
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`prior art references.” In Paragraph 51, Kursh refers to a “claim chart.” However,
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`the claim chart is just 20 pages of block quotes from Toy. In one instance, a block
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`quote spans 3 pages of the chart. Kursh does not analyze, expound upon or
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`connect the chart to his conclusory opinions in Paragraphs 46-50. This kind of
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`testimony is devoid of any of the reliability demanded by the Federal Circuit and is
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`of no help to the Board in evaluating Toy, the connection to the claimed features
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`and the alleged anticipation (other than suggesting that the Board read Toy).
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`C. New References Are Needlessly Cumulative
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`At the outset of this proceeding, the Board streamlined the proceeding by
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`determining that many of the references originally submitted by Petitioners were
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`redundant to the references granted review. Decision, Paper 18, at 40. Petitioners
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`recently cited several of these redundant references, specifically Exhibit Nos.
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`1006-1013 and 1025-1033, in their Opposition and Reply through the Kursh
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`Declaration. For example, Petitioners cite both Satow and eSignal as teaching
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`“server-based, scalable and redundant.”
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`Petitioners now submit New References Chapraty, Keilani, Ambrose, Lim
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`and Toy for this same teaching. These New References are redundant to and
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`cumulative of the prior art of record, including at least Satow and eSignal. In fact,
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`Markets-Alert has not denied that in general scalable and redundant server
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`architecture was known in the art. Given that the Board already once demonstrated
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`its preference to focus the issues under review, the sudden addition of 5 new
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`references for this same, minor and, frankly, inconsequential point is unwarranted.
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`While these references would not work a substantive harm on the issues
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`under review (since they are cumulative in nature), Markets-Alert respectfully
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`submits that their probative value is substantially outweighed by potential
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`prejudice and confusion. These submissions are essentially a litigation-style
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`document dumping. They will force the Board to wade through and filter
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`unnecessary documents, which wastes attention and focus that would be better
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`spent on the key, narrow issues under review.
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`Similarly, New Reference Kraemer should also be excluded as prejudicial.
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`With an effective date of October 10, 2000, Kraemer beats the October 26, 2000
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`priority date of the ‘357 Patent by only about two weeks. Given the nearness in
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`date, Kraemer is unreliable and creates a high risk of prejudice and confusion, as to
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`whether or not a “live link” was commonly known prior to the invention. 2
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`D. New References Were Not of Record Or Known
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`Petitioners submitted the New References in conjunction with their
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`Opposition and Reply. The New References were not of record at the time of
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`Markets-Alert’s Response. Although the Board held that Petitioners had the right
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`to submit additional evidence, Order, Paper 53 (in response to Markets-Alert’s
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`request for page and time extensions), the timing of the New References is highly
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`prejudicial because Markets-Alert did not know of the New References and had no
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`realistic opportunity to brief these New References or Petitioners’ new arguments.
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`As the Board has noted, Markets-Alert can only address prior art of record
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`or known to Markets-Alert. Order, Paper 53 at 3. Markets-Alert anticipated this
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`dilemma early in the proceeding when it sought authorization for discovery of any
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`2 At the November 12, 2013 conference call, the Board denied Markets-Alert’s
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`request to move to exclude Kraemer on the basis of a prior invention date as not
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`properly the subject of an evidentiary motion. In order to establish a clear record,
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`Markets-Alert makes an offer of proof that but for this ruling, it would have moved
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`to exclude Exhibit No. 1036 (Kraemer) as not relevant under FRE 402 on the basis
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`that the claimed subject matter was invented prior to at least October 4, 2000. See
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`77 Fed. Reg. 48612 at 48633, Response to Comment 76.
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`prior art not already of record that Petitioners may assert. See e.g., Patent Owner
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`Markets-Alert Motion For And To Compel Discovery (D28) at 4-5 (“Keeping
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`Markets-Alert (and the Board) in the dark about other prior art, only to spring them
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`later in this proceeding, makes no sense and is inefficient.”). The Board denied
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`this request. Order, Paper 32. It would be unfair to hold Markets-Alert responsible
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`for prior art references that Petitioners could have but did not disclose earlier.
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`This is especially so since Petitioners had prior notice of the features of the
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`new claims from Markets-Alert’s Preliminary Response. Moreover, none of the
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`New References would have turned up in a reasonable prior art search. Searching
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`the patent and application databases using a broad set of claim term parameters
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`(stock, technical analysis, real-time and server) yields 41 prior art patents and
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`published applications. None of the New References appear in these results. A
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`search based on live link would not have uncovered Kraemer because Kraemer
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`does not contain that term.
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`IV. CONCLUSION
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`Therefore, Markets-Alert respectfully requests that the Board exclude this
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`unreliable evidence and proceed on the merits of the arguments and prior art
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`references properly of record.
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`834609.2
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`15
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`Case No. CBM2013-00005 (JYC)
`Patent 7,941,357
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`Dated: November 19, 2013
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`Respectfully submitted,
`
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`Andrew Choung (USPTO Reg. No. 46,622)
`Email: achoung@glaserweil.com
`Arlyn Alonzo (USPTO Reg. No. 44,502)
`Email: aalonzo@glaserweil.com
`Adrian M. Pruetz (Pro Hac Vice)
`Email: apruetz@glaserweil.com
`GLASER WEIL FINK JACOBS
`HOWARD AVCHEN & SHAPIRO LLP
`10250 Constellation Boulevard, 19th Floor
`Los Angeles, CA 90067
`Tel: 310-553-3000
`Fax: 310-785-3506
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`834609.2
`
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`16
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`CERTIFICATE OF SERVICE
`
`I certify that a copy of the foregoing PATENT OWNER MARKETS-ALERT
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`MOTION TO EXCLUDE was served on November 19, 2013 to counsel of
`
`record for Petitioners via electronic mail:
`
`
`
`Michael T. Rosato
`USPTO Reg. No. 52,182
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue
`Suite 5100
`Seattle, WA 98104-7036
`Tel.: 206-883-2529
`Fax: 206-883-2699
`Email: mrosato@wsgr.com
`
`Brian D. Range
`USPTO Reg. No. 48,437
`WILSON SONSINI GOODRICH & ROSATI
`900 South Capital of Texas Hwy Las Cimas IV, Fifth Floor
`Austin, TX 78746-5546
`Tel.: 512-338-5478
`Fax: 512-338-5499
`Email: brange@wsgr.com
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`
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`/s/ Arlyn Alonzo
`Arlyn Alonzo
`
`
`
`834609
`834609.2
`
`
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