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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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`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.,
`Petitioners
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
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`_____________________
`
`Case CBM2014-00131
`Patent 7,533,056
`_____________________
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`PETITIONERS’ OBJECTIONS TO PATENT OWNER’S
`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`TDA 1055
`CBM1025-00131
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`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00131
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`Petitioners TD Ameritrade Holding Corp., TD Ameritrade, Inc., and TD
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`Ameritrade Online Holdings Corp. (“Petitioners”) object to the admissibility of the
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`following evidence Trading Technologies International, Inc. (“Patent Owner”)
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`submitted with its Patent Owner’s Response. 37 C.F.R. § 42.64. Petitioners ask the
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`Patent Trial and Appeal Board to deny the admission and consideration of the
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`following documents on the following bases:
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`Trading Tech Exhibit 2201 - Corrected Expert Report of C. Thomas
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`Petitioners object to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402, or as confusing or a waste of time under FRE 403,
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`because cited portions are not relevant to any issue remaining in this proceeding,
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`such as patentability of the subject matter, written description of the invention,
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`broadest reasonable interpretation of the claims, indefiniteness of the claims,
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`anticipation of the claims by the prior art, or obviousness of the claims in view of
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`the prior art.
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`To the extent Patent Owner relies on the contents of this document for the
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`truth of the matter asserted, Petitioners object to such contents as inadmissible
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`hearsay under FRE 801 and 802 that does not fall under any exceptions, including
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`those of FRE 803, 804, 805 or 807.
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`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00131
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`Petitioners object to this document as not properly authenticated under FRE
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`901 because Patent Owner has not presented any evidence that the document is
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`authentic nor that the document is self-authenticating under FRE 902.
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`Petitioners object to the document to the extent it offers opinion under FRE
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`701 - 703. The declarant is not qualified to offer expert testimony in this
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`proceeding, the testimony is not based on sufficient facts or data, and there is no
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`indication that declarant has the expertise necessary to apply the law to the facts as
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`would be necessary to opine under FRE 702. Further, there is no indication that the
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`declarant based those opinions on facts or data upon which an expert in the
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`relevant field would reasonably rely, as any facts or data that the testimony is
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`based on have not been submitted as exhibits. FRE 703. Further, testimony at these
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`paragraphs falls outside acceptable lay opinion testimony under FRE 701. A party
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`may not evade the expert witness requirements of FRE 702 by simply designating
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`the testimony as lay testimony under FRE 701.
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`Petitioners object to the document for lack of foundation. Patent Owner has
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`not shown that the declarant has personal knowledge of the subject matter of the
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`testimony as required by FRE 602.
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`Petitioners object to the document as citing exhibits not served with the
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`document as required by 37 C.F.R. § 42.51(b)(1)(i)
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`Trading Tech Exhibit 2202 - Patent Eligible Subject Matter presentation
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`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00131
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`Petitioners object to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402, or as confusing or a waste of time under FRE 403,
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`because cited portions are not relevant to any issue remaining in this proceeding,
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`such as patentability of the subject matter, written description of the invention,
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`broadest reasonable interpretation of the claims, indefiniteness of the claims,
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`anticipation of the claims by the prior art, or obviousness of the claims in view of
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`the prior art.
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`To the extent Patent Owner relies on the contents of this document for the
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`truth of the matter asserted, Petitioners object to such contents as inadmissible
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`hearsay under FRE 801 and 802 that does not fall under any exceptions, including
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`those of FRE 803, 804, 805 or 807.
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`Petitioners object to this document as not properly authenticated under FRE
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`901 because Patent Owner has not presented any evidence that the document is
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`authentic nor that the document is self-authenticating under FRE 902.
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`Petitioners object to the document for lack of foundation. Patent Owner has
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`not shown that the declarant has personal knowledge of the subject matter of the
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`testimony as required by FRE 602.
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`To the extent Patent Owner relies on the contents of this document to prove
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`the content of the original document, Petitioners object to this document as not
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`being an original document under FRE 1002, an authentic duplicate under FRE
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`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00131
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`1003, nor a document that falls under any exceptions to the original-document
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`requirement, including those of FRE 1004.
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`Petitioners object to this document under FRE 1006 as an improper
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`summary because Patent Owner has not shown that the contents of the original
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`cannot be conveniently examined in court nor made the original or duplicates
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`available for examination or copying.
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`Petitioners object to the document as an improper demonstrative. Patent
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`Owner has not established a proper foundation for the evidence set forth in the
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`document.
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`Trading Tech Exhibit 2206 - User Companion for thinkorswim
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`Petitioners object to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402, or as confusing or a waste of time under FRE 403,
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`because cited portions are not relevant to any issue remaining in this proceeding,
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`such as patentability of the subject matter, written description of the invention,
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`broadest reasonable interpretation of the claims, indefiniteness of the claims,
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`anticipation of the claims by the prior art, or obviousness of the claims in view of
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`the prior art.
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`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00131
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`To the extent Patent Owner relies on the contents of this document for the
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`truth of the matter asserted, Petitioners object to such contents as inadmissible
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`hearsay under FRE 801 and 802 that does not fall under any exceptions, including
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`those of FRE 803, 804, 805 or 807.
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`To the extent Patent Owner relies on the contents of this document to prove
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`the content of the original document (e.g., the underlying product or software),
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`Petitioners object to this document as not being an original document under FRE
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`1002, an authentic duplicate under FRE 1003, nor a document that falls under any
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`exceptions to the original-document requirement, including those of FRE 1004.
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`Petitioners object to this document under FRE 1006 as an improper
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`summary because Patent Owner has not shown that the contents of the original
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`cannot be conveniently examined in court nor made the original or duplicates
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`available for examination or copying.
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`Petitioners object to the document to the extent it offers opinion under FRE
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`701 - 703. The declarant (i.e., whoever is the author) has not been shown to be
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`qualified to offer expert testimony, it has not been shown that the testimony is not
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`based on sufficient facts or data, and there is no indication that declarant has the
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`expertise necessary to apply the law to the facts as would be necessary to opine
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`under FRE 702. Further, there is no indication that the declarant based those
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`opinions on facts or data upon which an expert in the relevant field would
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`reasonably rely. FRE 703. Further, testimony at these paragraphs falls outside
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`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00131
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`acceptable lay opinion testimony under FRE 701. A party may not evade the
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`expert witness requirements of FRE 702 by simply designating the testimony as
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`lay testimony under FRE 701.
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`Petitioners object to the document for lack of foundation. Patent Owner has
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`not shown that the declarant has personal knowledge of the subject matter of the
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`testimony as required by FRE 602.
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`Petitioners object to the document as an improper demonstrative. Patent
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`Owner has not established a proper foundation for the evidence set forth in the
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`document.
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`Petitioners object to the document as citing exhibits not served with the
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`document as required by 37 C.F.R. § 42.51(b)(1)(i).
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`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00131
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`These objections are made within five business days from the March 6, 2015
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`Patent Owner’s Response.
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`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`/Jonathan M. Strang/
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`Lori A. Gordon, Registration No. 50,633
`Robert E. Sokohl, Registration No. 36,013
`Jonathan M. Strang, Registration No. 61,724
`Attorneys for Petitioners
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`Date: March 13, 2015
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`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
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`1977610_1.DOCX
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`CERTIFICATION OF SERVICE
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`The undersigned hereby certifies that on March 13, 2015, the attached “Petitioners’
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`Objections to Patent Owner’s Evidence Pursuant to 37 C.F.R. § 42.64(b)(1)” were served
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`electronically via e-mail upon the following counsel for Patent Owner, TTI:
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`Erika H. Arner, Reg. No. 57,540
`Joshua L. Goldberg, Reg. No. 59,369
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
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`erika.arner@finnegan.com
`joshua.goldberg@finnegan.com
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`Steven F. Borsand
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`steve.borsand@tradingtechnologies.com
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` STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`/Jonathan M. Strang/
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` Jonathan M. Strang
`Date: March 13, 2015
` Lead Attorney for Petitioners
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`1100 New York Avenue, N.W. Registration No. 50,633
`Washington, D.C.20005-3934
`(202) 371-2600
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