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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
`
`v.
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`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`____________________
`
`Case CBM2014-00131
`Patent 7,533,056
`____________________
`
`
`PETITIONERS’
`MOTION TO EXCLUDE
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`I.
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`II.
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`
`Table of Contents
`
`Relief Requested .............................................................................................. 1
`
`The Board should exclude TT’s district court demonstratives (Exs. 2007 and
`2202) ................................................................................................................ 1
`
`A.
`
`B.
`
`C.
`
`D.
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`These two documents are demonstratives from District Court
`proceedings used here to show the truth of the matters asserted .......... 2
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`The Board should exclude these demonstratives as inadmissible
`hearsay ................................................................................................... 3
`
`The Board should exclude these presentations for lack of personal
`knowledge and as improper expert testimony ....................................... 4
`
`The Board should exclude these demonstratives for lack of
`authenticity and as improper summaries ............................................... 5
`
`E.
`
`The Board should exclude these demonstratives as irrelevant ............. 5
`
`III. The Board should exclude TT’s HCI website printouts (Exs. 2008 - 2016) ... 6
`
`A.
`
`B.
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`C.
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`These documents are printout of web pages allegedly describing HCI
`programs, and are used to show that HCIs are technological ............... 6
`
`The Board should exclude these printouts as inadmissible hearsay ..... 7
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`The Board should exclude these printouts for lack of authenticity ...... 7
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`IV. The Board should exclude portions of the Thomas Report (Ex. 2201)........... 7
`
`A.
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`B.
`
`C.
`
`Because Mr. Thomas adopted only parts of Ex. 2201 as his testimony
`in this proceeding, the Board should exclude the unadopted portions
`as inadmissible hearsay ......................................................................... 8
`
`The Board should exclude as hearsay the portions of the Thomas
`Reports that act as a conduit for the expunged Brumfield hearsay ....... 8
`
`The Board should exclude as hearsay the portions of the Thomas
`Reports that act as a conduit for other hearsay statements .................10
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`The Board should exclude the Thomas Report as irrelevant and a
`waste of time .......................................................................................10
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`
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`D.
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`V.
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`The Board should exclude the Pletz article (Ex. 2020) .................................11
`
`A.
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`B.
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`The Board should exclude the Pletz article as inadmissible hearsay ..12
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`The Board should exclude the Pletz article for lack of authenticity ...12
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`VI. Conclusion .....................................................................................................13
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`- ii -
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`
`Table of Authorities
`
`
`Cases
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`United States v. Dukagjinih,
`326 F.3d 45 (2d Cir. 2003) ......................................................................................... 9
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`- iii -
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`Exh. No.
`1001
`1002
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`1003
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`1004
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`1005
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`1006
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`1007
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`1008
`1009
`1010
`1011
`1012
`1013
`1014
`1015
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`1016
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`1017
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`Exhibit List
`
`CBM2014-00131
`U.S. Pat. No. 7,533,056
`
`Description
`U.S. Patent No. 7,533,056 to Friesen et al. (“’056 patent”)
`File History of Application Ser. No. 11/417,544, which became the
`’056 patent, as filed and obtained from PAIR (“’056 Patent File
`History” or “File History”)
`“Futures/Option Purchasing System Trading Terminal Operation
`Guide,” Tokyo Stock Exchange (“TSE JP”)
`Certified Translation of “Futures/Option Purchasing System Trading
`Terminal Operation Guide” (“TSE”)
`Certificate of Translation for “Futures/Option Purchasing System
`Trading Terminal Operation Guide” (“TSE Certificate” or “1st
`O’Connell Decl.”)
`Memorandum from James M. Hilmert to eSpeed file regarding
`direct examination of TSE’s 30(b)(6) witness, dated December 5,
`2005 (“Depo. Letter”)
`Deposition Transcript of Atsushi Kawashima, Trading Technologies
`International, Inc., v. eSPEED, Inc., Case No. 04-cv-5312, United
`States District Court, Northern District of Illinois, Eastern Division,
`dated November 21, 2005 (“Depo. Transcript”)
`U.S. Patent No. 5,375,055 to Togher et al. (“Togher”)
`U.S. Patent No. 5,619,631 to Schott (“Schott”)
`U.S. Patent No. 5,136,501 to Silverman et al. (“Silverman”)
`U.S. Patent No. 5,414,809 to Hogan et al. (“Hogan”)
`U.S. Patent No. 5,297,031 to Gutterman et al. (“Gutterman”)
`U.S. Patent No. 5,454,104 to Steidlmayer et al. (“Steidlmayer”)
`Reuters Globex User Guide, June 1995 (“Globex”)
`Alan Cooper, “About Face: The Essentials of User Interface
`Design,” First Edition, 1995. (“Cooper”)
`Edward R. Tufte, “The Visual Display of Quantitative Information,”
`1983 (“Tufte VDQI”)
`Edward R. Tufte, “Envisioning Information,” Third Edition,
`- iv -
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`Exh. No.
`
`1018
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`1019
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`1020
`1021
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`1022
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`1023
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`1024
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`1025
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`1026
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`1027
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`1028
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`1029
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`
`Description
`December 1992 (“Tufte EI”)
`Ben Shneiderman, “Designing the User Interface: Strategies for
`Effective Human-Computer Interaction,” Third Edition, 1998
`(“Shneiderman”)
`Sunny J. Harris, “Trading 101 – How to Trade Like a Pro,” 1996
`(“Harris”)
`Robert Deel, “The Strategic Electronic Day Trader,” 2000 (“Deel”)
`Sun Microsystems, Inc., “Open Look™ Graphical User Interface
`Functional Specification,” November 1989 (“Open Look”)
`Valerie Quercia et al., “X Window System User’s Guide,”
`OSF/Motif 1.2 Edition, The Definitive Guides to the X Window
`System, Vol. 3, August 1993 (“Quercia”)
`Richard W. Afrms Jr., “Profits in Volume - Equivolume Charting,”
`1975 (“Arms”)
`Definition of “default,” The Computer Glossary, Fifth Edition, 1991
`page 175. (“Computer Glossary”)
`Definition of “default,” The Illustrated Dictionary of
`Microcomputers, Third Edition, 1990, page 90. (“Illustrated
`Dictionary”)
`Definition of “default,” Webster’s New World College Dictionary,
`Fourth Edition, 2007, page 378. (“Webster’s”)
`Microsoft Computer Dictionary, Fifth Edition, 2002, pages 102,
`150, 174, 176, and 348 (“Microsoft Computer Dictionary”)
`Defendants’ Memorandum of Law In Support of Joint Motion for
`Summary Judgment That the ’056 Patent is Invalid Under 35 U.S.C.
`§ 112 ¶ 1 for Lack of Written Description, Trading Technologies
`International, Inc. v. BGC Partners, Inc., Case No. 1:10-cv-00715,
`United States District Court for the Northern District of Illinois,
`Eastern Division, filed August 15, 2011 (“SJ Motion”)
`Trading Technologies International Inc.’s (1) Opposition to
`Defendants’ Joint Motion for Summary Judgment That the ’056
`Patent is Invalid Under 35 U.S.C. § 112 ¶ 1 for Lack of Written
`Description and (2) Cross Motion for Summary Judgment That the
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`Exh. No.
`
`1030
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`1031
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`1032
`1033
`1034
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`1035
`1036
`1037
`1038
`1039
`1040
`1041
`1042
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`1043
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`1044
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`1045
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`
`Description
`’056 Patent Meets the Written Description Requirement Set Forth in
`35 U.S.C. § 112 ¶ 1, Trading Technologies International, Inc. v.
`BGC Partners, Inc., Case No. 1:10-cv-00715, United States District
`Court for the Northern District of Illinois, Eastern Division, filed
`September 14, 2011 (“SJ Opposition”)
`Memorandum Opinion and Order, Trading Technologies
`International, Inc. v. BGC Partners, Inc., Case No. 1:10-cv-00715,
`United States District Court for the Northern District of Illinois,
`Eastern Division, filed February 9, 2012 (“SJ Opinion”)
`Vernon L. Smith, “An Experimental Study of Competitive Market
`Behavior,” The Journal of Political Economy, Vol. LXX, No. 2,
`April 1962 (“Smith”)
`Declaration of Kendyl A. Román (“Román Decl.”)
`Curriculum Vitae of Kendyl A. Román (“Román CV”)
`List of Materials Considered by Kendyl A. Román (“Román List of
`Materials”)
`Official Transcript of Conference Call held January 20, 2015
`Declaration of Ronald E. Skidmore (“Skidmore Decl.”)
`Declaration of Maho Taniguchi-Speller (“Speller Decl.”)
`Declaration of Eiken Hino (“Hino Decl.”)
`Declaration of Akiko Rosenberry (“Rosenberry Decl.”)
`Declaration of Courtney O’Connell (“2nd O’Connell Decl.”)
`April 16, 2015 Hearing Transcript (“Apr. Conf. Call Tr.”)
`Supplemental Declaration of Kendyl A. Román in Support of
`Petitioners’ Reply for Covered Business Method Review of U.S.
`Patent 7,533,056 (“Suppl. Román Decl.”)
`Deposition Transcript of Christopher Thomas held April 28, 2015
`(“Thomas Tr.”)
`Deposition Transcript of Christopher Thomas held August 14, 2007
`(“Thomas eSpeed Tr.”)
`Supplemental Declaration of Richard Hartheimer dated October 21,
`2011 (“Suppl. Hartheimer Decl.”)
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`
`Description
`Excerpts of Trial Transcript of Proceedings, Vol. 11-A, Trading
`Tech’s Int’l v. eSpeed Inc., et al. Case No. 04-cv-5312 (N.D. Ill.),
`held September 26, 2007. (“eSpeed Tr. Vol. 11”)
`Excerpts of Trial Transcript of Proceedings, Vol. 12-A, Trading
`Tech’s Int’l v. eSpeed Inc., et al. Case No. 04-cv-5312 (N.D. Ill.),
`held September 27, 2007. (“eSpeed Tr. Vol. 12”)
`Excerpts of Trial Transcript of Proceedings, Vol. 17-A, Trading
`Tech’s Int’l v. eSpeed Inc., et al. Case No. 04-cv-5312 (N.D. Ill.),
`held October 4, 2007. (“eSpeed Tr. Vol. 17”)
`Summary of Facts and Submissions for European Patent No. 1 319
`211, dated September 30, 2010 (“EPO Summary of Facts and
`Submissions”)
`Deposition Transcript of Harold Abilock held April 24, 2015
`(“Abilock Tr.”)
`Proprietor’s Response to Communication Pursuant to Article 101(1)
`and Rule 81(2) to (3) EPC, dated June 14, 2011 (“EPO Response”)
`Deposition Transcript of Richard Hartheimer held April 29, 2015
`Deposition Transcript of Akiko Rosenberry, Vol. II, held February
`17, 2015
`Petitioners’ Objections to Patent Owner’s Evidence Pursuant to 37
`C.F.R. § 42.64(b)(1) dated December 16, 2014
`Petitioners’ Objections to Patent Owner’s Evidence Pursuant to 37
`C.F.R. § 42.64(b)(1) dated March 13, 2015
`Declaration of Jay Knoblock
`Declaration of Chris Thomas (served as Ex. 2211)
`
`Exh. No.
`1046
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`1047
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`1048
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`1049
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`1050
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`1051
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`1052
`1053
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`1054
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`1055
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`1056
`1057
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`I.
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`Relief Requested
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
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`Petitioner TD Ameritrade asks the Board to exclude over a dozen
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`inadmissible exhibits to remove them from the record. It is not enough for the
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`Board to find that this motion is moot because the Board did not rely on the
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`inadmissible exhibits in making its final written decision. If the exhibits remain in
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`the record, Patent Owner TT will be able to cite them again on appeal to the
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`Federal Circuit, and TD Ameritrade will be unfairly forced to face them again.
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`This would be especially unfair here, where TT deliberately deluged the
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`Board and TD Ameritrade with over a dozen inadmissible exhibits, knowing that
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`TD Ameritrade would be forced to use up valuable briefing space to address the
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`exhibits on the merits despite their evidentiary shortcomings. TT’s downpour
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`included over 200 pages of district court demonstratives, an expert report
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`addressing different patents, and various unauthenticated and hearsay webpages.
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`TD Ameritrade asks the Board to rid this proceeding of all of these inadmissible
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`exhibits.
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`II. The Board should exclude TT’s district court demonstratives (Exs. 2007
`and 2202)
`
`TD Ameritrade timely objected to these two demonstratives, each of which
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`is over 100 pages of additional briefing submitted into this proceeding in the guise
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`of evidence. 1st Objections at 4-6 (Ex. 1054); 2d Objections at 4-5 (Ex. 1055). At
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`best, these two demonstratives show what TT previously argued in previous
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`
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`proceedings. But TT is improperly using them here as evidence to support its
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`factual assertions. The Board should therefore exclude these two demonstratives as
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`inadmissible hearsay (FRE 802), for lack of personal knowledge (FRE 602), as
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`improper opinion testimony (FRE 701, 702), as improper and unauthenticated
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`copies and summaries of other documents (FRE 901, 1002-1004, 1006), and as
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`irrelevant, confusing and a waste of time (FRE 401, 403).
`
`A. These two documents are demonstratives from District Court
`proceedings used here to show the truth of the matters asserted
`
`Exhibit 2007 is a “Tutorial,” containing 119 pages of TT’s arguments in an
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`unidentified proceeding between TT and GL Trade. TT relies on this exhibit to
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`support its contentions that TT’s commercial product is innovative and embodies
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`its claimed invention, is commercially successful, and solved a problem. POPR at
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`1 (citing slides 2, 8).
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`Exhibit 2202 is a 112-page “Patent Eligible Subject Matter” presentation
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`containing TT’s legal and factual arguments that the ’132 and ’304 patent claims
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`are eligible for patenting because GUIs are technological and its alleged invention
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`solved a problem, and is cited to support those same arguments regarding the ’056
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`patent here. POR at 10 (citing Ex. 2202 at PTX 6052-56 as showing the claimed
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`invention is in a technologic field). TT served an affidavit purporting to
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`authenticate this document as being given “to the District Court in presenting
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`
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`arguments on patent eligibility under 35 U.S.C. § 101 in Case No. 05-cv-4811.”
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`Knoblock Decl. ¶ 3 (served as Ex. 2212, filed as Ex. 1056). This affidavit,
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`however, does not purport to establish that any of underlying excerpts and copies
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`are what they claim to be. Rather, it confirms that Exhibit 2202 is 112 pages of
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`additional attorney argument on the merits, despite being submitted here as an
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`exhibit.
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`B.
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`The Board should exclude these demonstratives as inadmissible
`hearsay
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`The Board should exclude both presentations because they are inadmissible
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`hearsay and do not fall into any exceptions. FRE 802. They primarily consist of
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`statements made outside this proceeding by whoever made the slides, and as
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`explained in the previous section, TT is trying to use these statements to prove the
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`truth of the matters asserted. FRE 801. Some of these statements are attributed to
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`particular individuals. For example, TT argues that its claimed GUI is a new
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`technology in a technological field. POR at 22 (citing Ex. 2202 at PTX 6052-56,
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`which includes quotes attributed to various individuals). But these quoted
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`statements, like all of those of the presentation drafter(s), were made outside of this
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`proceeding (and therefore cross examination was not available under routine
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`discovery), and so they are inadmissible hearsay.
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`Also, Ex. 2007 contains quotes attributed to Mr. Brumfield, while other
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`
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`portions appear to indirectly rely on his trial testimony. E.g., Ex. 2007 at 28-33;
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`Ex. 2202 at PTX 6045. But the Board expunged Mr. Brumfield’s testimony from
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`the co-pending proceedings involving the ’132 and ’411 patents after TT withdrew
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`its agreement to make him available for deposition. CBM2014-00135, Order at 2-3
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`(Paper 41, May 15, 2015). TT cannot use these demonstratives as a conduit to
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`insert his hearsay testimony into this evidentiary record.
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`C. The Board should exclude these presentations for lack of personal
`knowledge and as improper expert testimony
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`In addition, the Board should exclude both presentations because TT has not
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`shown that the unnamed presentation drafters and the persons allegedly quoted
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`possessed the requisite personal knowledge of the subject matter to support the
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`statements made in the demonstratives. FRE 602. Further, portions of these
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`presentations include what appears to be expert opinion testimony. E.g., Ex. 2007
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`at 8-11, 16-17, 29-57; Ex. 2202 at 49-69. But TT has not even tried to established
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`that the presentation drafter(s) and quoted persons had the expertise necessary to
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`apply the law to the facts, or that they based their opinions on facts or data upon
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`which an expert in the field would reasonably rely. FRE 702, 703. And TT may not
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`evade the expert witness requirements of FRE 702 by designating these
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`presentations as lay testimony under FRE 701. FRE 701 Committee Notes--2000
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`Amendment (“Rule 701 has been amended to eliminate the risk that the reliability
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`requirements set forth in Rule 702 will be evaded through the simple expedient of
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`proffering an expert in lay witness clothing.”).
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`D. The Board should exclude these demonstratives for lack of
`authenticity and as improper summaries
`
`The Board should also exclude both presentations because they contain
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`myriad unauthenticated excerpts from other often unidentified documents and they
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`are not proper summaries of those documents. FRE 1002-1004, 1006. And
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`although TT provided a declaration establishing that Exhibit 2202 is a true and
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`correct copy of a District Court demonstrative, Exhibit 2007 should be excluded
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`because TT has not shown that it is a true and correct copy of anything.
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`The Board should exclude these demonstratives as irrelevant
`
`E.
`The Board should exclude both presentations as irrelevant under FRE 401
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`and thus inadmissible under FRE 402, or as confusing and as a waste of time under
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`FRE 403 because the cited portions are not relevant to any issue in this proceeding.
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`Specifically, Exhibit 2202 is expressly directed to other patents (the ’304 and the
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`’132) with different claims, and Exhibit 2007 is not directed to any patent in
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`particular, mentioning only the ’132 patent on one slide. Ex. 2007 at 75.
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`III. The Board should exclude TT’s HCI website printouts (Exs. 2008 -
`2016)
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`
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`TD Ameritrade timely objected to these unauthenticated printouts of various
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`webpages containing statements about Human-Computer Interface programs that
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`TT uses to support its arguments regarding GUIs. 1st Objections at 6-13 (Ex.
`
`1054). The Board should therefore exclude these webpage printouts as
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`inadmissible hearsay (FRE 802) and for lack of authentication (FRE 901).
`
`A. These documents are printout of web pages allegedly describing
`HCI programs, and are used to show that HCIs are technological
`
`These unauthenticated webpages ostensibly show that NASA and various
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`universities have HCI programs, and TT improperly uses them here as support for
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`its factual assertions that its own claimed GUI is technological and solves a
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`technical problem. Exs. 2008 - 2016; POR at 9-10; POPR at 6-7. For example, TT
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`argues that “NASA includes a Human Systems Integration Division that covers
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`several ‘technical areas,’” providing a block quote as support. POR at 10.
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`Two of these printouts purport to show NASA’s webpages for its Human
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`Systems Integration Division and its HCI group. Exs. 2011, 2012. The printouts do
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`not have a web address and TT declined to provide any affidavit explaining who
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`printed the webpages, when, and from what web site. The remaining printouts
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`purport to describe the HCI or related programs offered by various educational
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`institutions. Exs. 2008 - 2016. For example, Ex. 2010 states that the University of
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`Washington has a “HCI Degree Option” as part of its “Bachelor of Science in
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`
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`Human Centered Design & Engineering Program.”
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`The Board should exclude these printouts as inadmissible hearsay
`
`B.
`The Board should exclude these printouts as inadmissible hearsay outside of
`
`any exception. FRE 802. The unnamed web page authors were not testifying in this
`
`proceeding, and as explained in the previous section, TT is using the statements on
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`the printouts to prove the truth of the matter asserted. FRE 801.
`
`C. The Board should exclude these printouts for lack of authenticity
`The Board should exclude these exhibits for lack of authenticity because TT
`
`has not shown they are true and correct copies of the purported web pages. FRE
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`901 (“To satisfy the requirement of authenticating or identifying an item of
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`evidence, the proponent must produce evidence sufficient to support a finding that
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`the item is what the proponent claims it is.”). TT could have cured TD
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`Ameritrade’s authenticity objection by timely filing supplemental evidence. But
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`TT chose not to, and the Board should not excuse TT’s blatant disregard of 37
`
`C.F.R. § 42.62 and the Federal Rules of evidence.
`
`IV. The Board should exclude portions of the Thomas Report (Ex. 2201)
`TD Ameritrade timely objected to this excerpt from Mr. Thomas’s expert
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`report from the CQG litigation. 2d Objections at 2-3 (Ex. 1055). The Thomas
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`Report addresses only the ’132 and ’304 patents, not the unrelated ’056 patent.
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`Thomas Depo. Tr. at 19-20, 43-44, 47-48; see also id. at 32 (TT’s counsel
`
`
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`objecting that the claims of the ’056 patent are “way beyond the scope of his
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`testimony here.”). The Board should therefore exclude the Thomas Report as
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`inadmissible hearsay (FRE 802) and as irrelevant or confusing and a waste of time
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`(FRE 401-403).
`
`A. Because Mr. Thomas adopted only parts of Ex. 2201 as his
`testimony in this proceeding, the Board should exclude the
`unadopted portions as inadmissible hearsay
`
`The Thomas Report (Ex. 2201) would be hearsay in its entirety but for Mr.
`
`Thomas’s last-minute adoption of some portions as his direct testimony here. In
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`response to TD Ameritrade’s objections, TT served a new declaration from Mr.
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`Thomas, in which he adopted paragraphs 19-311 of that report as his testimony in
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`this proceeding. Thomas Decl. ¶ 5 (served as Ex. 2211, filed as Ex. 1057). The
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`Board should therefore exclude the unadopted paragraphs 1-18, 32-34, 176, and
`
`177 from Ex. 2201 as hearsay outside of any exceptions. FRE 801, 802.
`
`B.
`
`The Board should exclude as hearsay the portions of the Thomas
`Reports that act as a conduit for the expunged Brumfield hearsay
`
`The Board should exclude paragraphs 31, 33 and 34 of the Thomas Report
`
`as hearsay because the Thomas Reports are acting as a conduit for the Brumfield
`
`1 Mr. Thomas did not select these particular paragraphs and does not know
`
`who did. Thomas Depo. at 27.
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`CBM2014-00131
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`hearsay expunged from co-pending proceedings . FRE 802. As already explained,
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`
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`TT uses the Thomas Reports in an attempt to prove the truth of the matter asserted,
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`and expressly cites paragraph 31 as evidence of the problems solved by the
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`claimed invention. POR at 23.
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`An expert may normally base his opinion on hearsay if it is the type of
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`evidence experts would reasonably rely upon. FRE 703. But expert testimony
`
`cannot be used as a vehicle to evade the hearsay requirement. United States v.
`
`Dukagjinih, 326 F.3d 45, 57-59 (2d Cir. 2003). What Brumfield was concerned
`
`with and what actions he took are beyond Thomas’s scope of expertise, and by
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`repeating Brumfield’s testimony, Thomas has crossed the line from permissibly
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`relying on hearsay to form his expert opinion to impermissibly being a mere
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`conduit for hearsay. Id.
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`The Board should therefore exclude these paragraphs rather than allow TT to
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`use Thomas as a backdoor through which Brumfield’s expunged hearsay testimony
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`reenters this proceeding. This is especially true here, because TT promised to
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`provide Mr. Brumfield for cross-examination in the other proceedings. But once
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`the Thomas deposition was safely over, TT reneged on that promise, depriving TD
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`Ameritrade the opportunity to cross-examine the best witness on this subject
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`matter.
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`C. The Board should exclude as hearsay the portions of the Thomas
`Reports that act as a conduit for other hearsay statements
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`
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`The Board should exclude paragraphs 32-34 of the Thomas Reports as
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`hearsay because, as with the Brumfield portions discussed above, Thomas is
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`impermissibly acting as a conduit for hearsay statements by quoting and
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`paraphrasing statements made by various declarants (including many of the 31
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`hearsay declarations discussed later herein) in another proceeding. Mr. Thomas did
`
`not speak with these declarants, yet he paraphrased and liberally quoted their
`
`testimony and other similar testimony not of record in this proceeding. Thomas
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`Depo. Tr. at 54-55 (Ex. 1043); Thomas Report at ¶¶ 32-34 (Ex. 2201). As in the
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`previous section, this crosses the line from permissibly relying on hearsay to form
`
`an expert opinion to impermissibly acting as a conduit for hearsay. Dukagjinih,
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`326 F.3d at 57-59.
`
`D. The Board should exclude the Thomas Report as irrelevant and a
`waste of time
`
`The Board should exclude the Thomas Report because it does not address
`
`the ’056 patent. He did not review any prior art to the ’056 patent, and he did not
`
`opine on any differences between the’056 patent and the subject of the Thomas
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`Report, the ’132 and ’304 patents, despite his understanding that the ’056 patent
`
`claims a different invention. Thomas Depo. Tr. at 10, 19-22, 31-32, 43-44, 47-48.
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`To the extent that the Thomas Report is tangentially related to the ’056 patent, it
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`CBM2014-00131
`U.S. Pat. No. 7,533,056
`should be excluded as confusing and a waste of time because the Board and the
`
`
`
`parties must parse each of his statements and determine whether the differences
`
`between the ’056 patent’s claims and those of the ’132 and ’304 patents would
`
`have changed his opinion. This is something Mr. Thomas should have done, but
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`did not.
`
`V. The Board should exclude the Pletz article (Ex. 2020)
`TD Ameritrade timely objected to the unauthenticated, double-hearsay Pletz
`
`article, which purportedly recount’s TT’s ranking in the “Crain’s Eureka Index”
`
`rankings of Chicago-area businesses, which itself would have been hearsay. 1st
`
`Objections at 13-14 (Ex. 1054).
`
`The Pletz article is ostensibly a printout of a web page titled “Crain’s Eureka
`
`Index ranks Chicago’s Most Innovative Firms,” and the author, John Pletz, is
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`purportedly relaying the rankings of Chicago-area businesses based on the number
`
`of patents issued. Ex. 2020. Mr. Pletz credits “Crain’s research” for the rankings,
`
`but does not mention who at Crain’s counted the number of patents issued. Id.
`
`Despite TD Ameritrade’s timely objections including authenticity and hearsay, TT
`
`did not serve any supplemental evidence curing these defects.
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`U.S. Pat. No. 7,533,056
`A. The Board should exclude the Pletz article as inadmissible
`hearsay
`
`
`
`The Board should exclude this article as inadmissible hearsay outside of any
`
`exception. FRE 802. The purported author, John Pletz, was not testifying in this
`
`proceeding, and TT is using the statements on the printouts to support its assertions
`
`that TT is innovative. FRE 801; POPR at 1.
`
`The Board should exclude the Pletz article for lack of authenticity
`
`B.
`The Board should exclude this exhibit for lack of authenticity because TT
`
`has not shown it is a true and correct copies of the purported web page. FRE 901
`
`(“To satisfy the requirement of authenticating or identifying an item of evidence,
`
`the proponent must produce evidence sufficient to support a finding that the item is
`
`what the proponent claims it is.”). TT could have cured TD Ameritrade’s
`
`authenticity objection by timely filing supplemental evidence. But TT chose not to,
`
`and the Board should not excuse TT’s blatant disregard of 37 C.F.R. § 42.62 and
`
`the Federal Rules of evidence.
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`CBM2014—00131
`
`US. Pat. No. 7,533,056
`
`VI. Conclusion
`
`TT’S strategy here was to inundate the Board and TD Ameritrade in a deluge
`
`ofinadmissible exhibits in the hopes of drowning out the actual issues. TT should
`
`not be rewarded for such tactics. For the above reasons, TD Ameritrade therefore
`
`asks the Board to exclude the aforementioned exhibits.
`
`Date: June 12, 2015
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`1 100 New York Avenue, NW.
`Washington, DC. 20005—3934
`(202) 371 —2600
`
`
`.
`,Registration No. 61,724
`
`Lori A. Gordon,
`egistration No. 50, 633
`Robert E. Sokohl, Registration No.36,013
`Attorneys for Petitioners
`
`-13-
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`CBM2014-00131
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`US. Pat. No. 7,533,056
`
`CERTIFICATION OF SERVICE
`
`The undersigned hereby certifies that the foregoing PETITIONERS’
`
`MOTION TO EXCLUDE and all associated exhibits were served electronically
`
`via e—mail on June 12, 2015, in their entirety on the following:
`
`Erika H. Arner (Lead Counsel)
`Joshua L. Goldberg (Back—up Counsel)
`Kevin D. Rodke Back-u Counsel
`, ,
`5 y(
`p
`)
`FINNhoAN, HENDERSON, FARABOW,
`GARRETI‘ & DUNNER LLP
`.
`’
`erika.arner@finnegan.com
`joshuagoldberg@finnegan.com
`kevin.rodkey@finngan.com
`
`Steven F. Borsand (Back—up Counsel)
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`.
`.
`steve.borsand@trad1ngtechnologies.com
`
`S'I‘ERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`Jonathan M. Stran /
`
`Registration N 61,724
`Attorney for Petitioners
`
`Date: June 12, 2015
`
`1 100 New York Avenue, NW.
`
`Washington, D.C.20005-3934
`(202) 371—2600
`
`2009675_2.DOCX
`
`