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`TD Ameritrade Holding et al v. Trading Technologies
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` Conference Call
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
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`TD AMERITRADE HOLDING )
`CORP., TD AMERITRADE, )
`INC., AND TD AMERITRADE )
`ONLINE HOLDINGS CORP., )
` ) CBM2014-00131
` Petitioner, ) (PATENT 7,533,056
` ) CBM2014-00137
` VS. ) (PATENT 7,685,055
` )
`TRADING TECHNOLOGIES )
`INTERNATIONAL, INC., )
` )
` Patent Owner. )
`____________________________)
`
` REPORTER'S TRANSCRIPT OF PROCEEDINGS
` TELEPHONIC CONFERENCE CALL
`
` TUESDAY, FEBRUARY 10, 2015 3:30 P.M.
`REPORTED BY: ARIELA PASTEL, CSR
`HON. JUDGE SALLY C. MEDLEY, MEREDITH C. PETRAVICK
`PRESIDING
`-----------------------------------------------------
` DIGITAL EVIDENCE GROUP
` 1726 M Street, NW, Suite 1010
` Washington, D.C. 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2015
`
`202-232-0646
`
`Board Exhibit 3003
`CBM2014-00131
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`APPEARANCES OF COUNSEL:
`
`FOR THE PETITIONER:
`
` STERNE KESSLER GOLDSTEIN FOX
` BY: JONATHAN M. STRANG , ESQ.
` ROBERT E. SOKOHL, ESQ.
` 1100 New York Avenue
` NW Suite 600
` Washington, DC 20005
` 202.371.2600
` jstrang-PTAB@skgf.com
`
`FOR THE PATENT OWNER:
`
` FINNEGAN, HENDERSON, FARABOW, GARRETT &
` DUNNER
` BY: KEVIN RODKEY, ESQ.
` ERIKA H. ARNER, ESQ.
` JOSHUA L. GOLDBERG, ESQ.
` 901 New York Avenue, NW
` Washington, DC 20001-4413
` 202.408.4000
` Kevin.rodkey@finnegan.com
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` FEBRUARY 10, 2015
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`Page 3
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` JUDGE PETRAVICK: Good afternoon, this
`is Judge Petravick. With me on the phone is Judge
`Medley. We are here for CBM 2014-00131 and
`CBM 2014-00137. We'll do a roll call. Who is on
`the line for petitioner?
` MR. STRANG: Petitioner, Your Honor, is
`Jon Strang, S-t-r-a-n-g, and Rob Sokohl,
`S-o-k-o-h-l. And we do have a court reporter,
`Your Honor.
` JUDGE PETRAVICK: Thank you. And for
`patent owner.
` MR. RODKEY: For patent owner, Your
`Honor, this is Kevin Rodkey, R-o-d-k-e-y. And
`with me is Joshua Goldberg, G-o-l-d-b-e-r-g, and
`Erika Arner, A-r-n-e-r.
` JUDGE PETRAVICK: Is there anybody else
`on the phone? Thank you.
` Petitioner, you requested this
`conference call, so we'll hear from you first.
` MR. STRANG: Yes. Thank you, Your
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`Honor. The scope of cross exam, in our view,
`should be limited under the rules, specifically
`Rule 37 CFR 42.53(d)(5)ii that for cross
`examination testimony, the scope of the
`examination should be limited to the scope of the
`direct testimony.
` Now, here the translator's declarations
`are just limited to their qualifications, for
`example, I work 34 years as a Japanese translator
`and lived in Japan for 28 years and to also what
`they specifically translated.
` For example, one of the declarants
`declared, "I personally translated Pages 101 to
`140 of the TSE document and certified it as
`accurate and correct."
` And that seems pretty simple, so the
`question is why are we here? Well, during its
`cross examination of our expert, Mr. Rowe
`(phonetic spelling), the patent owner tried to
`exceed the boundaries of acceptable cross
`examination under the rules.
` So rather than have to bother the board
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`during all of these multiple depositions, we
`thought we would approach the patent owner first
`and discuss among ourselves what the appropriate
`limits would be.
` Patent owner disagrees with our reading
`of the rules as far as the scope of cross
`examination, so it's our position that cross
`examination is limited to what the rule states,
`which is what is on the declaration and that the
`patent owner is not allowed to go on some sort of
`fishing expedition.
` JUDGE PETRAVICK: You're finished?
` MR. STRANG: Yes, Your Honor.
` JUDGE PETRAVICK: Patent owner.
` MR. RODKEY: This is Kevin Rodkey for
`patent owner. I think as a first matter, this
`issue is actually a little premature. There
`aren't any objections on the record. There's no
`deposition question pending about those documents.
` And if the petitioner has any
`objections to any specific questions or documents,
`the Trial Practice Guide does permit the
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`petitioner to object on the record, and, if
`necessary, we can have a call during the
`deposition.
` So just as an initial matter, we think
`this is a little premature. And as a second
`matter, this is routine discovery under Rule
`4251(B)(1)ii, and the scope of cross examination
`doesn't mean that we can't use additional
`documents to test the credibility or to impeach
`the translator's pages that they translated.
` So to do that, we may need to put other
`pages from the TSE reference in front of the
`translators to determine whether there are
`inaccuracies or inconsistencies in the pages
`translated by the translator when they also need
`to use other forms of the TSE reference or other
`documents that have been translated by these
`translators that have similar words.
` So if the translator translates words
`inconsistently or the TSE document is translated
`inconsistently, we need to have the ability to put
`those two parts in front of a translator and
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`Page 7
`assess whether these are meaningful differences or
`not.
` MR. STRANG: Your Honor, may I respond
`to that?
` JUDGE PETRAVICK: Yes.
` MR. STRANG: This kind of dovetails
`with another issue and has to do with what has
`happened during the previous proceedings where
`Mr. Goldberg told this board that a translation of
`TSE has been, quote, heavily disputed" and end
`quote, "outcome determinative" in a district court
`proceeding and before the EPO.
` Now, before the district court, we went
`and pulled that. They didn't provide the district
`court transcript or the EPO transcript. We made a
`good faith effort to make sure there were no
`problems with our translation because we have a
`vested interest in it being correct.
` But we pulled the transcript and --
`which was available print only and found that, on
`the contrary, that the experts who testified --
`and that's a major point here. Experts that read
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`these are the ones need to decide whether these
`differences are significant.
` So if one person -- if the two
`translations are different, only the expert and
`the technology can tell us whether or not those
`differences are significant as far as what that
`would teach to one of skill in the art.
` And, in fact, during the trial, the
`expert testified that the -- that there were no
`differences, and all significant areas the
`translations were significant -- excuse me -- were
`the same.
` And we also pulled the transcript -- we
`also pulled the EPO proceeding. And, again, we
`found nothing showing that the translations were
`outcome determinative. The parties have
`submitted -- the parties -- we were not involved
`in that, but the patent owner and the opponent in
`the EPO submitted several different translations,
`most of which it looks like were also in the
`trial.
` And, again, we don't see any
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`significant differences of those. So under
`routine discovery rules, patent owner was
`obligated to serve on us relevant information
`contradicting their position that there had, in
`fact, been heavily disputed and outcome
`determinative translations in previous
`proceedings, and they have not done that.
` So it's our position that they should
`be required to point to us any other proceedings
`where the translations were not outcome
`determinative.
` And as a matter of fact, we think with
`what the patent owner represented to the board,
`we're entitled to at least be pointed to the
`alleged proceedings where the -- (inaudible) -- of
`the translations matter because we simply can't
`find them, Your Honor.
` JUDGE PETRAVICK: That's a separate
`issue from the scope of this deposition.
` MR. STRANG: Well, we think it's sort
`of the same, Your Honor, because what mattered to
`the court and what should matter to the board,
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`it's our position, is whether the experts think
`that the different translations matter.
` Whether a given translator who doesn't
`understand the underlying computer technology
`thinks it makes a difference is not relevant.
` JUDGE PETRAVICK: We've heard from you.
`I am going to take a minute to consult with my
`panel, and then we will be back. Please hold the
`line.
` (Whereupon, a recess wad held
` from 3:37 p.m. to 3:41 p.m.)
` JUDGE PETRAVICK: This is Judge
`Petravick back again. Are both parties for the
`petitioner and patent owner still on the line?
` MR. STRANG: Petitioner is here, Your
`Honor.
` MR. RODKEY: Patent owner is here, Your
`Honor.
` JUDGE PETRAVICK: Judge Medley is with
`me, too. We've heard what you had to say, and
`we've decided that your issue is premature. Until
`we know exactly what the question is going to be
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`asked and what the facts and relevance of that
`specific question is, we are unable to determine
`whether that question is appropriate or not.
` So we suggest that you follow the Trial
`Practice Guide, and if you find a question to be
`irrelevant or outside the appropriate scope, that
`you make the appropriate objection and then file a
`motion to exclude, as per the terms of our rules.
` As to the other issue, the alleged
`court document that shows that the TSE reference
`is inaccurate, at this point in time, that
`question is also premature.
` The patent owner has not filed a patent
`owner response yet. If they do not provide the
`document -- if they rely upon the document in the
`patent owner's response and they do not provide it
`to you, we will address the issue at that time.
` Since we are not going to be deviating
`from our rules in any way, we will not be issuing
`an order for this call.
` Are there any other questions?
` MR. RODKEY: Your Honor, this is Kevin
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`Rodkey for patent owner. We just have one
`question. It's really guidance from the panel.
` One of the translators is not being
`made available for deposition. And petitioner has
`had a different translator execute a declaration
`attesting to the accuracy of the non-produced
`translator's pages.
` If we want to object to this second
`declaration from this translator, would you like
`us to lodge a new objection with the patent
`owner -- I'm sorry -- with the petitioner, or was
`our original objection to the original O'Connell
`declaration that was served with the petition that
`we originally objected to efficient to preserve an
`objection to this declaration?
` JUDGE PETRAVICK: Let me see if I
`understand the circumstances -- the facts as
`you've told them to me correctly.
` So as to your original objection, which
`I assume you served when the translator
`certification came across, you've made -- you
`served an objection at that point, and in response
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`there's a new declaration by a different
`translator?
` MR. RODKEY: Yes. So let me lay out
`the facts simply just to be clear. So with the
`original petition, there was a declaration of
`Ms. Courtney O'Connell that patent owner objected
`to.
` In response to that, petitioner served
`four different declarations from various
`translators attesting to the accuracy of the TSE
`reference or the translation.
` And then we requested depositions. We
`got them from the board. And one of those
`translators is not being made available for
`deposition.
` Instead the petitioner has submitted a
`new declaration from one of the translators that
`will be deposed attesting to the accuracy of the
`translator who is not appearing for deposition.
` And if we want to object to this final
`declaration, would you like us to do that, or was
`our original objection that necessitated all this
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`Page 14
`supplemental evidence sufficient to preserve our
`objection if we choose to try and exclude this?
`Does that make more sense?
` JUDGE PETRAVICK: Yes, I understand
`now.
` MR. STRANG: Your Honor, can I add some
`facts to this?
` JUDGE PETRAVICK: Sure.
` MR. STRANG: The original declaration
`was followed by -- as was correctly noted, by
`supplemental declarations, a follow-up declaration
`from Courtney O'Connell that explained the
`translation process and then declarations from
`each of the individual four translators.
` One of the translators is in Japan. We
`are unable to make him available for deposition,
`and we approached patent owner, and the parties
`agreed that we would -- that one of the three
`translators who we can make available in the
`United States, in California, could review the
`translation and attest the accuracy.
` And in accordance with the party's
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`agreement, we served a second declaration from
`that translator -- the translator's name is Ronald
`Skidmore, if I recall correctly -- attesting to
`the -- attesting that he had reviewed the
`translation that was made by the person that is in
`Japan and attested to its accuracy.
` So I think that the -- I don't think
`that -- that patent owner can now bootstrap a new
`objection to something that they've already agreed
`to.
` JUDGE PETRAVICK: Okay. I'm going to
`take a moment again and conference with my panel
`and the issue. So please hold the line again.
` (Whereupon, a recess was held
` from 3:46 p.m. to 3:50 p.m.)
` JUDGE PETRAVICK: This is Judge
`Petravick. Are both parties still on the line?
` MR. STRANG: Petitioner is on the line,
`Your Honor.
` MR. RODKEY: And patent owner is on the
`line, Your Honor. And I would just like to note
`that we actually specifically reserve the right to
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`strike Mr. Hino's testimony in one of our
`responses to petitioner, so we didn't necessarily
`agree that this was sufficient.
` JUDGE PETRAVICK: Well, I've discussed
`this issue with my panel. And we have reviewed
`our rules, and we believe that according to our
`rules, the original objection is sufficient in
`this case.
` The second declaration was supplemental
`to cure the original objection. If you can't
`agree that it cured the original objection, then
`the original objection still stands.
` As to whether the parties agree between
`themselves previously that it did cure the
`objection, that can -- you know, and now if people
`are saying that it's not cure the objection, that
`can be put into any opposition to a motion to
`exclude, if such a motion is filed.
` Again, that, we believe, is just
`according to our rules, so we will not be issuing
`any orders to that effect either.
` We ask that the transcript be filed in
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`the case once it is ready. And as that has been
`all the issues, we will adjourn.
`
` (Whereupon, at the hour of
` 3:52 p.m., the proceedings
` were concluded.)
` -o0o-
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`www.DigitalEvidenceGroup.com
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`Digital Evidence Group C'rt 2015
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`202-232-0646
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`2/10/2015
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`TD Ameritrade Holding et al v. Trading Technologies
`
` Conference Call
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`Page 18
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`State of Ohio )
` )ss
`County of Ashtabula )
`
` I, ARIELA PASTEL, Certified Shorthand
`Reporter for the State of Ohio, hereby certify:
` The foregoing proceedings were taken before
`me telephonically;
` The proceedings were recorded
`stenographically by me and were thereafter
`transcribed;
` The foregoing transcript is a true and
`correct transcript of my shorthand notes so taken;
` I further certify that I am neither counsel
`for nor related to any party to said action, nor
`in any way interested in the outcome thereof.
` IN WITNESS WHEREOF, I have hereunto
`subscribed my name this 10th day of February,
`2015.
`
` _______________________________
` ARIELA PASTEL, CSR
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`www.DigitalEvidenceGroup.com
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`Digital Evidence Group C'rt 2015
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`202-232-0646