Case CBM2014-00131; CBM2014-00133; CBM2014-00135; CBM2014-00137
`O'Connell, Courtney
`February 13, 2015
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`1
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`TD AMERITRADE HOLDING CORP., TD AMERITRADE, INC., and
` TD AMERITRADE ONLINE HOLDINGS CORP.,
` Petitioners,
` vs.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` Patent Owner
` ______________
` Case CBM2014-00131 (Patent 7,533,056)
` Case CBM2014-00133 (Patent 7,676,411)
` Case CBM2014-00135 (Patent 6,772,132)
` Case CBM2014-00137 (Patent 7,685,055)
` _______________
` Deposition of
` COURTNEY O'CONNELL
` Washington, D.C.
` Friday, February 13, 2015
` 9:05 a.m.
`
`Reported by: Donna Ann Peterson
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`TRADING TECH EXHIBIT 2093
`TD Ameritrade v. Trading Technologies
`CBM2014-00131
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`Page 1 of 99
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`O'Connell, Courtney
`February 13, 2015
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`1
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`TD AMERITRADE HOLDING CORP., TD AMERITRADE, INC., and
` TD AMERITRADE ONLINE HOLDINGS CORP.,
` Petitioners,
` vs.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` Patent Owner
` ______________
` Case CBM2014-00131 (Patent 7,533,056)
` Case CBM2014-00133 (Patent 7,676,411)
` Case CBM2014-00135 (Patent 6,772,132)
` Case CBM2014-00137 (Patent 7,685,055)
` _______________
` Deposition of
` COURTNEY O'CONNELL
` Washington, D.C.
` Friday, February 13, 2015
` 9:05 a.m.
`
`Reported by: Donna Ann Peterson
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`TRADING TECH EXHIBIT 2093
`TD Ameritrade v. Trading Technologies
`CBM2014-00131
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`Page 1 of 99
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`O'Connell, Courtney
`February 13, 2015
`
`2
` Deposition of COURTNEY O'CONNELL, taken at
`the law offices of:
`
` STERNE, KESSLER, GOLDSTEIN & FOX, PLLC
` Sixth Floor
` 1100 New York Avenue, N.W.
` Washington, D.C.
`
` Pursuant to Notice, before Donna Ann
`Peterson, Notary Public in and for the District of
`Columbia.
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`February 13, 2015
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` A P P E A R A N C E S
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` ON BEHALF OF PETITIONER:
` JONATHAN M. STRANG, ATTORNEY at LAW
` MARK FOX EVENS, ATTORNEY at LAW
` STERNE KESSLER GOLDSTEIN FOX
` 1100 New York Avenue, N.W.
` Washington, D.C. 20005
` Telephone: (202) 371-2600
`
` ON BEHALF OF PATENT OWNER:
` JOSHUA L. GOLDBERG, ATTORNEY at LAW
` FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
` 901 New York Avenue, N.W.
` Washington, D.C. 20001
` Telephone: (202) 408-4000
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`February 13, 2015
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`4
` A P P E A R A N C E S C O N T I N U E D
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` ON BEHALF OF PATENT OWNER:
` KEVIN D. RODKEY, ATTORNEY at LAW
` FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
` 3500 Suntrust Plaza
` 303 Peachtree Street, Northeast
` Atlanta, Georgia 30308
` Telephone: (404) 653-6400
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`February 13, 2015
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` C O N T E N T S
`EXAMINATION OF COURTNEY O'CONNELL PAGE
` Cross Examination By Mr. Rodkey 6
` Redirect Examination By Mr. Strang 78
` E X H I B I T S
` (Exhibits attached to the transcript.)
`TDA DEPOSITION EXHIBITS PAGE
` 1021 Declaration of Courtney O'Connell, 15
` CBM2014-00137
` 1040 Declaration of Courtney O'Connell, 13
` CBM2014-00131
`TDA DEPOSITION EXHIBIT PAGE
` 1019 Declaration of Eiken Hino, CBM2014-00137 39
` 1007 Japanese-language reference document, 16
` CBM of U.S. Patent No. 7,685,055,
` TSE0000000647
` 1008 English translation of TDA 1007, 15
` Futures/Option Purchasing System Trading
` Terminal Operation Guide, Tokyo Stock
` Exchange Operation System Division,
` CBM of U.S. Patent No. 7,685,055
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`O'Connell, Courtney
`February 13, 2015
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` P R O C E E D I N G S
`Thereupon,
` COURTNEY O'CONNELL,
`was called as a witness by counsel for Patent Owner,
`and having been duly sworn by the Notary Public, was
`examined and testified as follows:
` MR. RODKEY: As a preliminary matter, we
`want to deal with a clerical error that occurred with
`the Patent Office's PRPS system.
` The copies of TDA Exhibit Number 1040 in
`proceeding 2014-00131, and TDA Exhibit Number 1021 in
`proceeding CBM2014-00137, did not appear in the PRPS
`system. The Petitioner is going to get the clerical
`error corrected. The copies of those exhibits we
`have today have handwritten numbers on them, but the
`parties have agreed that for purposes of this
`deposition, that's sufficient.
` CROSS EXAMINATION BY COUNSEL FOR PATENT OWNER
`BY MR. RODKEY:
` Q. Good morning, Ms. O'Connell.
` A. Good morning.
` Q. And do you understand that you are under
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`February 13, 2015
`
`7
`oath today and that means that you have to tell the
`truth?
` A. I do.
` Q. And we have a court reporter here today,
`so our conversation is being taken down. Because of
`that, I ask that you speak clearly and accurately so
`that she can take down the words that you say, and
`can you do that for me?
` A. Absolutely. I'll speak as clearly and
`accurately as I can.
` Q. Okay. And because we also have her with
`us, it's important that we don't talk over each
`other, interrupt each other, because then the
`transcript will be incomplete and there will be
`phrases that are very hard to follow. So I will try
`not to interrupt you, if you'll agree to try not to
`interrupt me.
` Is that okay?
` A. Sounds good.
` Q. And you understand that this proceeding,
`this transcript, can be used either in a court or an
`administrative proceeding, correct?
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`February 13, 2015
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` A. I do.
` Q. Okay. And have you ever been deposed
`before?
` A. No, I have not.
` Q. Okay. I will kind of give you a little
`background on what we're going to do. Essentially
`I'm going to ask you some questions about your
`declarations and administrative proceedings. When I
`ask questions, I'm just trying to get more
`information. So I'm trying to trick you.
` If you have questions about what I've
`asked or you don't understand what I've asked, can
`you ask me for clarification?
` A. Absolutely.
` Q. Okay. And if you don't ask me for
`clarification, can I assume that you understood what
`I asked?
` A. Yes, you may.
` Q. And from time to time, TD Ameritrade's
`counsel may object to a question.
` Do you understand that unless you're
`instructed not to answer, you have to answer the
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`February 13, 2015
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`question that I've asked?
` A. I do understand that I need to ask [sic]
`every question, unless my attorney says otherwise.
` Q. And I will try take a break about every
`hour, maybe every 45 minutes, depending on the
`situation. If you need a break at another time, feel
`free to ask me. The only thing that I ask, if I've
`asked a question, please go ahead and answer the
`question before we take a break.
` Is that okay.
` A. Understood.
` Q. And do you understand that during the
`breaks, you are not permitted to talk to anyone about
`your testimony here?
` A. I do understand.
` Q. And do you understand that includes TD
`Ameritrade's counsel?
` A. Understood.
` Q. And is there any reason that you cannot
`testify truthfully and accurately today?
` A. No. I will testify as truthfully and
`accurately as I possibly can.
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`February 13, 2015
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` Q. And have you taken any substances that
`would prevent you from testifying truthfully or
`accurately, any medications?
` A. No, I have not.
` Q. And if something happens to change whether
`you can testify truthfully or accurately, will you
`tell me?
` A. Yes.
` Q. And did you do anything to prepare for
`this deposition?
` A. No. I reviewed my declarations.
` Q. Is that the only thing you reviewed?
` A. Correct.
` Q. And which declarations were those?
` A. The original Affidavit of Accuracy and
`Declaration of Courtney O'Connell.
` Q. And did you review any others, other
`documents?
` A. I might have briefly reviewed our
`certification process.
` Q. And any others?
` A. No.
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` Q. And did you speak with anyone about your
`deposition today?
` A. I only spoke with the Sterne Kessler team.
` Q. And who on the Sterne Kessler team did you
`speak with?
` A. I spoke with Jonathan Strang and Mark
`Evens.
` Q. And when did you speak with Mr. Evens?
` A. I spoke with him yesterday and today.
` Q. For how long yesterday?
` A. We met briefly for a few hours yesterday.
` Q. And how long today?
` A. For about 45 minutes this morning.
` Q. Okay. Did you speak with Mr. Evens at any
`other time?
` A. No, I have not.
` Q. And when did you speak with Mr. Strang?
` A. I spoke with Mr. Strang, also, yesterday
`for a few hours and then again this morning for 45
`minutes.
` Q. Okay. And did you speak with Mr. Strang
`at any other time?
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`February 13, 2015
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` A. My only other communication with
`Mr. Strang was during this translation project.
` Q. And when did you speak with him during the
`translation project?
` A. I spoke with Mr. Strang from the
`beginning, pretty much through till today.
` Q. Do you remember about how many times you
`spoke with him?
` A. It was quite a few. Can't recall.
` Q. Do you recall the rough time frames you
`spoke with him, maybe the months?
` A. It was a while ago. I don't remember
`exactly.
` Q. Was it early last year, middle of last
`year, late last year?
` A. It was likely early of last year.
` Q. And do you remember any other times you
`spoke with Mr. Strang?
` A. I don't recall any other times I have
`spoken with him, other than the time frame I
`previously stated.
` Q. Do you remember about how many times you
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`February 13, 2015
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`spoke with Mr. Strang?
` A. No, I do not recall.
` Q. Would you guess it was more than ten?
` A. I mean, we touched base on a pretty
`regular basis, just to make sure everything was on
`track. But I would guess around ten.
` Q. That's over the course of the last year?
` A. Yes.
` Q. And did you speak with anyone else at
`Sterne Kessler?
` A. I have spoken with multiple people at
`Sterne Kessler. We work with them on a pretty
`frequent basis.
` Q. Regarding this translation project?
` A. I have not spoken with anybody else
`regarding this translation project.
` Q. And other than Sterne Kessler, have you
`spoken with anyone else about this translation
`project, in preparation for this deposition?
` A. No, I have not spoken with anybody else.
` Q. Ms. O'Connell, I'm handing you a copy of
`Exhibit TDA 1040 in proceeding 2014-00131.
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`February 13, 2015
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` And do you recognize this exhibit?
` A. I do recognize this document.
` Q. And what is this document?
` A. It says here, this document is the
`Declaration of Courtney O'Connell.
` Q. And is that your declaration?
` A. It says it is my declaration, yes.
` Q. Do you believe this is your declaration?
` A. I do believe this is my declaration.
` Q. And is this the declaration that you
`reviewed in preparation for this deposition?
` A. This is the same declaration that I
`reviewed, yes.
` Q. Let's look at paragraph one of this
`declaration.
` Would you please read that into the
`record?
` A. "As I stated in my Affidavit of Accuracy
`dated May 14th, 2014, the English translation of the
`Japanese-language Tokyo Stock Exchange document
`titled 'Futures/Option Purchasing System-Trading
`Terminal Operation Guide,' 'the TSE document,' is
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`true and accurate to the best of my knowledge and
`belief."
` Q. I'm handing you what has been marked as
`TDA Exhibit Number 1021 in proceeding CBM2014-00137.
` And do you recognize this document?
` A. Yes, I recognize this document. It
`appears the same as the one previously handed over.
` Q. And do you have any reason to believe this
`is not the same declaration?
` A. I have no reason to believe that they are
`any different.
` Q. And I am handing you what has been marked
`as TDA Exhibit Number 1008 in CBM proceeding
`2014-00137.
` MR. STRANG: Do you have another copy of
`that?
`BY MR. RODKEY:
` Q. And is this the TSE document that you
`referred to in Exhibit 1 of your declaration?
` A. They have the same title, so I am inclined
`to believe that they are the same, yes.
` Q. Do you have any reason to believe that
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`they're not the same?
` A. No, I do not, as the titles seem to match.
` MR. RODKEY: And the parties have
`stipulated that Exhibit 1008 in CBM2014-00137 and
`Exhibit 1004 in CBM2014-00131 were the same document
`filed.
` MR. STRANG: Yes, so long as those go
`along with the translated version of TSE.
` MR. RODKEY: Yes.
`BY MR. RODKEY:
` Q. I am handing you what has been marked as
`Exhibit TDA 1007 in proceeding CBM2014-00137.
` MR. STRANG: Do you have another copy?
` Thanks.
`BY MR. RODKEY:
` Q. And do you recognize this document?
` A. I do not speak Japanese.
` Q. But do you recognize the document?
` A. Again, I don't speak Japanese. I'm
`confident that they are the same documents, both
`Japanese and English copy.
` Q. Is this the Japanese-language document of
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`the translation referred to in Exhibit 1 of your
`declaration?
` A. Again, I, you know, base the document
`title off of the English copy. But I would assume
`that they are, that is the original source document.
` Q. And the bottom right-hand corner of each
`of those documents, do you see the small black box?
` A. The small black box labeled "Exhibit DX
`179"?
` Q. Yes.
` A. Yes, I do see that box.
` Q. And does that appear the same in both of
`those documents?
` A. The box does appear the same.
` Q. And do you see a number that says "TSE,"
`followed by a number of zeros and a number at the
`end?
` A. Yes, I do.
` Q. And does that appear the same?
` A. The numbers do appear the same.
` Q. Based on that, does that lead you to
`believe that these are the same document?
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` A. I believe that the similarities and the
`same numbers are enough to believe they're the same
`document.
` MR. RODKEY: And the parties have agreed
`that Exhibit 1007 of proceeding CBM2014-00137 and
`Exhibit 1003 of CBM2014-00131 are the same document,
`provided they're both the Japanese original source
`document.
` MR. STRANG: Correct.
`BY MR. RODKEY:
` Q. Ms. O'Connell, did TransPerfect provide
`the translation that is Exhibit 1008?
` A. I believe TransPerfect did provide this
`translation.
` Q. And what leads you to believe that?
` A. As I understand, it is our English
`translation.
` Q. And who asked you to provide this
`translation?
` A. We were asked by Sterne Kessler -- Sterne
`Kessler to provide this translation.
` Q. Who at Sterne Kessler asked you to provide
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`it?
` A. We were asked by Jon Strang to provide
`this translation.
` Q. Anyone else?
` A. I worked pretty closely with my colleague,
`Sean Kiley, on the project. But, otherwise, no.
` Q. And did Mr. Kiley ask you to provide the
`translation?
` A. No, he did not.
` Q. When did Mr. Strang ask you to provide
`this translation?
` A. I'm not really sure. This was quite a
`while ago. I'm not sure of the exact date.
` Q. Do you remember when you provided the
`translation to Sterne Kessler?
` A. I can't remember when the exact date was,
`no.
` Q. Do you have an estimate of when that date
`was?
` A. Can't really say for sure.
` Q. Do you see in paragraph one of your
`declaration, marked as TDA Exhibit 10 -- 1040, that
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`it says you stated in an affidavit dated May 14th,
`2014, that you believe that you provided this
`translation some time around May of last year?
` A. That could be very possible, yes.
` Q. And did you provide any interim or
`intermediate translations to Sterne Kessler before
`providing the translation marked as Exhibit 1008?
` MR. STRANG: Objection, privileged.
` You may answer "yes" or "no."
` THE WITNESS: No.
`BY MR. RODKEY:
` Q. And you mentioned Sean Kiley.
` What was Mr. Kiley's role?
` A. Mr. Kiley is the TransPerfect
`representative that most frequently works with Sterne
`Kessler.
` Q. Do you know if Mr. Kiley contacted Sterne
`Kessler?
` A. I'm not sure I understand your question.
`Can you rephrase it?
` Q. Do you know if Sterne Kessler ever spoke
`directly with Mr. Kiley?
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` A. They speak all the time.
` Q. About this translation project?
` A. I imagine that they touched base
`frequently about this translation project, especially
`due to preparation for these, as well.
` Q. When you say "preparation for these," what
`do you mean?
` A. Just the depositions and getting
`everything in place for you guys.
` Q. So Mr. Kiley's been in contact with Sterne
`Kessler about these depositions, correct?
` A. That is correct, yes. They -- they talk
`frequently.
` Q. And after -- do you know if Mr. -- or did
`you discuss the substance of the translation in
`Exhibit 1008 or the original source document with
`Sterne Kessler before you provided the translation to
`them?
` MR. STRANG: Objection, privileged.
` You may answer "yes" or "no."
` THE WITNESS: No.
`BY MR. RODKEY:
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` Q. Do you know if Mr. Kiley talked to Sterne
`Kessler about the subject matter, about the substance
`of Exhibit 1007, prior to --
` MR. STRANG: Object.
` MR. RODKEY: -- providing the translation?
` MR. STRANG: Objection, privileged. Calls
`for speculation.
` You may answer "yes" or "no," if you know
`the answer.
` THE WITNESS: I cannot speak on behalf of
`Mr. Kiley, no.
`BY MR. RODKEY:
` Q. But do you know if he talked to them?
` MR. STRANG: Same objection.
` THE WITNESS: I cannot speak on behalf
`Mr. Kiley.
`BY MR. RODKEY:
` Q. I'm not asking you to speak on his behalf,
`I'm asking if you know if he talked to them. It's
`your knowledge.
` A. No.
` Q. And after you provided the translation
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`marked as Exhibit 1008, did you speak with Sterne
`Kessler about the substance of that translation?
` MR. STRANG: Objection, privileged.
` You may answer "yes" or "no."
` THE WITNESS: No.
`BY MR. RODKEY:
` Q. Do you know if Mr. Kiley spoke with Sterne
`Kessler about the substance of Exhibit 1008, after it
`was provided to Sterne Kessler?
` MR. STRANG: Same objection.
` THE WITNESS: No.
`BY MR. RODKEY:
` Q. No, you don't know? Or no, he didn't
`speak to them?
` A. No, I do not know if he spoke to them.
` Q. And did you discuss the substance of
`either Exhibit 1007 or Exhibit 1008 with anyone,
`other than Sterne Kessler?
` MR. STRANG: Same objection.
` THE WITNESS: No.
`BY MR. RODKEY:
` Q. Do you know if Mr. Kiley discussed the
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`substance of either Exhibit 1007 or Exhibit 1008
`with --
` MR. STRANG: Objection, privileged.
` MR. RODKEY: -- anyone else other than
`Sterne Kessler?
` MR. STRANG: Objection, privileged. Calls
`for speculation.
` THE WITNESS: No, I do not know.
`BY MR. RODKEY:
` Q. You don't know if he talked with anyone
`other than Sterne Kessler?
` MR. STRANG: Same objection.
` THE WITNESS: No, I do not know.
`BY MR. RODKEY:
` Q. Let's turn to paragraph four of your
`declaration.
` And would you please read paragraph four
`into the record, including the bullets below it?
` A. Paragraph four states: "The translators
`that translated the TSE document were: Eiken Hino,
`Ron Skidmore, Maho Taniguchi-Speller, Akiko
`Rosenberry."
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`BY MR. RODKEY:
` Q. So based on this statement, four different
`translators were used to translate Exhibit 1007 into
`Exhibit 1008, is that correct?
` A. The declaration lists four translators, so
`yes, four translators worked on the document.
` Q. Were those the only four translators that
`were used?
` A. As those are the only four on the
`declaration, those are the only four that worked on
`the document.
` Q. Why did TransPerfect use four translators?
` MR. STRANG: Objection, privileged.
` Don't answer the question.
`BY MR. RODKEY:
` Q. Do you know why TransPerfect used four
`translators?
` MR. STRANG: Objection, privileged.
` You can answer "yes" or "no."
` THE WITNESS: Yes, I do know why.
`BY MR. RODKEY:
` Q. Was TransPerfect asked to use more than
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`one translator?
` MR. STRANG: Objection, privileged.
` You may answer "yes" or "no."
` THE WITNESS: No, we were not.
`BY MR. RODKEY:
` Q. And just to be clear, you are not one of
`the translators here, listed here, correct?
` A. My lane -- my name is not listed in
`paragraph four, so I'm not a translators for this
`document.
` Q. And Mr. Kiley is not a translator for this
`document, right?
` A. Looking at paragraph four, his name is,
`also, not there, so he was not a translator on this
`document.
` Q. Who was responsible for selecting these
`translators?
` A. Our project manager.
` Q. And who is the project manager?
` A. The project manager for this translation
`was Cortne Edmunds.
` Q. And do you remember if Cortne Edmunds
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`spoke with Sterne Kessler about the substance of
`Exhibit 1007 before the translation was provided?
` MR. STRANG: Objection, privileged.
` You may answer "yes" or "no."
` THE WITNESS: They did not speak.
`BY MR. RODKEY:
` Q. Cortne Edmunds did not speak with Sterne
`Kessler, correct?
` MR. STRANG: Same objection.
` THE WITNESS: Correct. Cortne Edmunds did
`not -- did not speak with Sterne Kessler before this
`translation project.
`BY MR. RODKEY:
` Q. Did she speak with Sterne Kessler during
`this translation project?
` MR. STRANG: Same objection.
` THE WITNESS: Cortne Edmunds did not speak
`with Sterne Kessler during this translation.
`BY MR. RODKEY:
` Q. Did she speak with Sterne Kessler after
`this translation project?
` MR. STRANG: Same objection.
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` THE WITNESS: Cortne Edmunds did not speak
`with Sterne Kessler after this translation.
`BY MR. RODKEY:
` Q. To your knowledge, did Cortne Edmunds ever
`speak with Sterne Kessler in relation to this
`translation?
` MR. STRANG: Same objection.
` THE WITNESS: Cortne Edmunds has not
`spoken with Sterne Kessler.
`BY MR. RODKEY:
` Q. Do you know if any of the translators
`listed in paragraph four ever spoke with anyone at
`Sterne Kessler?
` MR. STRANG: Objection, privileged.
` You may answer "yes" or "no."
` THE WITNESS: No, I don't know.
`BY MR. RODKEY:
` Q. So, to your knowledge, none of the
`translators listed in paragraph four ever spoke with
`anyone at Sterne Kessler.
` A. That is correct. To my knowledge, none of
`these translators have ever spoken with Sterne
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`Kessler.
` Q. Have you ever heard anything that
`suggested any of these translators ever spoke with
`Sterne Kessler?
` MR. STRANG: Same objection.
` THE WITNESS: No, I have not heard
`anything that would lead me to believe that any of
`these translators have spoken with Sterne Kessler.
`BY MR. RODKEY:
` Q. And have you ever spoken with anyone
`acting on behalf of TD Ameritrade about Exhibit 1007
`or Exhibit 1008?
` MR. STRANG: Objection, privileged.
` You may answer "yes" or "no."
` THE WITNESS: No, I have not spoken with
`anybody at TD Amer -- Ameritrade.
`BY MR. RODKEY:
` Q. What about anyone acting on TD
`Ameritrade's behalf?
` MR. STRANG: Same objection.
` THE WITNESS: No, I have not spoken with
`anyone acting on TD Ameritrade's behalf.
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`BY MR. RODKEY:
` Q. Do you know if Mr. Kiley ever spoke with
`anyone acting on TD Ameritrade's behalf about this
`translation project?
` MR. STRANG: Objection privileged.
` You may answer "yes" or "no."
` THE WITNESS: No, I do not know.
`BY MR. RODKEY:
` Q. And do you know if Cortne Edmunds ever
`spoke with anyone acting on TD Ameritrade's behalf
`about this translation project?
` MR. STRANG: Same objection.
` THE WITNESS: No, I do not know.
`BY MR. RODKEY:
` Q. And do you know if any of the translators
`listed in paragraph four ever spoke with anyone on TD
`Ameritrade's behalf about the translation project?
` MR. STRANG: Same objection.
` THE WITNESS: I do not know that any of
`those translators have spoken with anyone acting on
`TD Ameritrade's behalf.
`BY MR. RODKEY:
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