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` Paper No. ______
`Filed: June 23, 2015
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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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`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
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`Case No. CBM2014-00131
`Patent 7,533,056
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`TABLE OF CONTENTS
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`Preliminary Statement .................................................................................. 1
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`Standard ......................................................................................................... 1
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`
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`I.
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`II.
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`III. Exhibit 2007, a Set of Demonstrative Exhibits, was Properly Cited
`in TT’s Preliminary Response and is not Hearsay ..................................... 2
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`IV. Exhibit 2202, a District Court Demonstrative, Was Not Offered
`for the Truth of the Matter Asserted ........................................................... 3
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`V.
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`The HCI Printouts (Exs. 2008-2016) Are Admissible ................................ 5
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`A.
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`The HCI Printouts are Exceptions to the Hearsay Prohibition or
`are Not Hearsay at All ........................................................................... 5
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`B.
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`The HCI Printouts Are Properly Authenticated .................................... 6
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`VI. The Thomas Report (Ex. 2201) is an Expert Opinion Relying on
`Proper Evidence ............................................................................................. 8
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`VII. The Pletz Article (Ex. 2020) is Admissible ................................................ 11
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`VIII. Conclusion .................................................................................................... 13
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`i
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`I.
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`Preliminary Statement
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`Patent 7,533,056
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`In its motion to exclude, Petitioners TD Ameritrade et al. (“TD”) repeatedly
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`ask the Board to ignore the nature of the evidence submitted by Trading
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`Technologies (“TT”), as well as the timing and circumstances of the evidence’s
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`submission.
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`TD criticizes TT’s reliance on exhibits, not declarations, in Patent Owner’s
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`Preliminary Response (“POPR”)—when, by rule, no declarations can be submitted
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`with that paper. Next, TD challenges as hearsay exhibits not submitted for the truth
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`of the matter asserted, distorting the exhibits’ use to further TD’s exclusionary
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`goals. Ignoring the rules governing the bases for expert opinions under FRE 703,
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`TD calls for the exclusion of opinions formed using litigation-tested declarations.
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`And TD argues that government websites and published articles—which remain
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`unavailable to this day— are somehow inauthentic or unreliable.
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`As these examples demonstrate, TD’s attacks are motivated not by a fair
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`reading of the rules of evidence, but rather by a litigation-driven desire to exclude
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`relevant, probative evidence. TT respectfully requests denial of TD’s motion.
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`II.
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`Standard
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`The Federal Rules of Evidence (“FRE”) govern the admissibility of evidence
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`in this proceeding. 37 C.F.R. § 42.62(a); Trial Practice Guide, 77 Fed. Reg. 48,756,
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`48,758 (Aug. 14, 2012). As the party moving to exclude evidence, TD bears the
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`1
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`burden of proof on inadmissibility. 37 C.F.R. § 42.20(c).
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`Patent 7,533,056
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`III. Exhibit 2007, a Set of Demonstrative Exhibits, was Properly Cited in
`TT’s Preliminary Response and is not Hearsay
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`TD criticizes TT for citing Exhibit 2007, a set of demonstrative slides
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`submitted to a court in parallel litigation, in its Patent Owner’s Preliminary
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`Response. Motion (Paper 55) at 2. TT cited this exhibit as general background
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`regarding TT’s formation, company size, and success of its MD Trader product.
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`POPR (Paper 17) at 1. TT’s reliance on these demonstratives was proper under the
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`Rules.
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`Under Rule 42.207(c) and the Board’s Trial Practice Guide (“TPG”), a
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`Patent Owner cannot submit new supporting declarations with its Preliminary
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`Response and must accordingly rely on evidence from other proceedings. 37
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`C.F.R. § 42.207(c) (“The preliminary response shall not present new testimony
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`evidence beyond that already of record . . . .”); TPG at 48,764 (“The preliminary
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`response may present evidence other than new testimonial evidence to demonstrate
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`that no review should be instituted.”) (emphasis added). As such, TD’s criticism of
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`TT’s citation of Exhibit 2007, not repeated in the Patent Owner’s Response
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`(“POR”), is misplaced.
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`Exhibit 2007 is demonstrative in nature and illustrates exemplary differences
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`between TT’s technology and the prior art. To narrow the issues before the Board,
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`2
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`TT agrees to rely on Exhibit 2007 as a demonstrative only, not to establish the
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`truth of the matters for which it is cited on page 1 of the POPR. As such, TD’s
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`hearsay objections are unfounded. TD’s objections under FRE 602, 702, and 703
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`fail for the same reason.
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`TD’s reliance on the best evidence rule (FRE 1002 et seq.) is similarly
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`misplaced. First, TT has not offered Ex. 2007 “in order to prove its content” or as a
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`“summary . . . of voluminous writings.” FRE 1002; FRE 1006. TT never alleged
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`any passage or figure of these exhibits served as a “summary” of a prior litigation.
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`Nor has TD pointed to any discrepancy between Ex. 2007 and any underlying
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`document. The “contents” of Ex. 2007 are therefore not at issue, and these rules are
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`inapplicable. Second, TD’s arguments go to the sufficiency of the evidence, not its
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`admissibility. TD’s motion questions whether the passages of Ex. 2007 are “proper
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`summaries” of the root proceedings. Motion at 5. This argument is improper in a
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`motion to exclude. See TPG at 48,767 (“A motion to exclude . . . may not be used
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`to challenge the sufficiency of the evidence to prove a particular fact.”).
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`IV. Exhibit 2202, a District Court Demonstrative, Was Not Offered for the
`Truth of the Matter Asserted
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`TD similarly asks the Board to exclude another demonstrative exhibit,
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`Ex. 2202, on the basis of hearsay, lacking personal knowledge, and the rules
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`3
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`governing expert testimony. Motion at 1-5. Due to the demonstrative nature of the
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`exhibit, as well as its intended use, TD’s arguments fail.
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`TT relied on Ex. 2202 (once) to show how purported experts of TD’s co-
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`defendants had characterized the field of the ’056 patent as technological. POR
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`at 10. But contrary to TD’s insistence, Ex. 2202 was not offered to establish the
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`truth of these characterizations. Id. (explaining what “TD’s co-defendants in the
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`district court” said about the field of the ’056 patent).
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`Because TT did not present this exhibit to establish the truth of the matters
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`asserted, it is not hearsay under FRE 801(c)(2). See Anderson v. United States, 417
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`U.S. 211, 219-220 (1974); Abrams v. Dep’t of Public Safety, 764 F.3d 244, 252 (2d
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`Cir. 2014). And because TT offered these exhibits to show what statements were
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`made, the personal knowledge (FRE 602) and opinion testimony requirements
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`(FRE 701, 702) are immaterial. Such evidence is not witness testimony. Finally,
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`TD’s attacks along the lines of the best evidence rule fail for the same reasons
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`above. Namely, the content of the exhibit is not at issue, so these rules do not
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`apply. FRE 1002, 1006.
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`Finally, TD asserts that Exhibit 2202 is somehow irrelevant (FRE 401) or a
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`waste of time (FRE 403). Not so. The exhibit contains materials considered in
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`litigation as to the nature of the patent in dispute here. This material provides
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`factual background helpful for patent eligibility and nonobvious assessments.
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`4
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`V. The HCI Printouts (Exs. 2008-2016) Are Admissible
`TD requests exclusion of the HCI printouts (Exs. 2008-2016) for purportedly
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`being hearsay and lacking authentication. Motion at 6-7. Neither assertion is
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`correct.
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`A. The HCI Printouts are Exceptions to the Hearsay Prohibition or
`are Not Hearsay at All
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`TT does not rely on Exhibits 2008-2016 for the truth of the matter asserted,
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`as TD suggests. These exhibits do not state that TT’s GUI “is technological and
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`solves a technical problem.” Motion at 6. Rather, TT provides these exhibits to
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`corroborate that GUIs are technology. See POR at 10. Exhibits 2008-2016
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`corroborate this fact regardless of whether TT’s GUIs are “technological and
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`solve[] a technical problem.” Motion at 6. Accordingly, these exhibits are not
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`hearsay.
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`Even if TT did need to prove the truth of the matter in these exhibits, they
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`fall within hearsay exceptions. Exhibits. 2008 and 2009 are separately admissible
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`because they are statements from a public office setting out its activities. FRE
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`803(8)(A)(i). NASA, a federal agency, is a public office. And its statements on the
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`division of its technical areas and their “research activities” set out its “activities.”
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`Id.
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`5
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`Exhibits 2010-2016 are also admissible under FRE 807. These printouts
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`from websites maintained by colleges and universities reflect the courses offered at
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`those educational institutions. There would be no reason for these institutions to
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`misrepresent the courses they offer or their descriptions thereof. Each website
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`remains available to the public at the addresses provided. See infra. Thus, these
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`statements have circumstantial guarantees of trustworthiness. FRE 807(a)(1).
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`The exhibits also evidence a material fact and are highly probative,
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`FRE 807(a)(2)-(3), demonstrating that third party institutions consistently classify
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`subject matter relevant to this proceeding as technological. Finally, admitting these
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`exhibits best serves the interest of justice. FRE 807(a)(4). The websites are
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`accurate. It would have been cost prohibitive (and pedantic) for both TT and TD to
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`depose an agent from each and every one of these schools for the sole purpose of
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`confirming their course offerings match their online listings. To request this
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`stresses form to the literal exclusion of substance.
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`TT also notes that its Preliminary Response serves as proper notice on the
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`intent to use these exhibits. FRE 807(b). And each of the exhibits lists names and
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`addresses of the institutions, or such information is readily available. Id.
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`The HCI Printouts Are Properly Authenticated
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`B.
`TD’s argument that Exhibits 2008-2016 are somehow inauthentic should
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`also be dismissed. Exhibits 2010-2016 include direct links to their sources at the
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`6
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`top of each page. See Exs. 2010-2016. All of these sources remain available to this
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`day and are accessible by either typing in a URL or querying public search
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`engines. TD can immediately confirm their content. TD cannot genuinely question
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`that these documents are what they purport to be. Moreover, these exhibits also
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`include additional indicia of authenticity such as school or government logos,
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`familiar colors and formats, dates, addresses, contact information, etc., sufficient to
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`determine their authenticity. FRE 901(b)(4); see also QSC Audio Prods., LLC v.
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`Crest Audio, Inc., IPR2014-00127, Paper 43 at 11-12 (Apr. 29, 2015).
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`Exhibits 2008 and 2009 are self-authenticating. “[P]ublication[s] purporting
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`to be issued by a public authority” “require no extrinsic evidence of authenticity.”
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`FRE 902(5). Exs. 2008 and 2009 are websites published by NASA, a federal
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`agency (i.e., a public authority). Documents on government websites are thus self-
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`authenticating. See, e.g., Hispanic Broad. Corp. v. Educ. Media Found., 2003 WL
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`22867633, at *5, n.5 (C.D. Cal. Oct. 30, 2003); Langbord v. U.S. Dept. of
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`Treasury, 2011 WL 2623315, at *14 (E.D. Pa. July 5, 2011) (finding printouts of
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`National Archives website are “prima facie authentic under FRE 902(5), which
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`provides that ‘publications purporting to be issued by public authority’ are self-
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`authenticating”). These documents also include indicia of authenticity—such as
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`NASA logos, the familiar website layout, proper names of research groups and
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`related officials, etc.—confirming they are genuine. FRE 901(b)(4); see also QSC
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`7
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`Audio., Paper 43 at 11-12. These documents remain available to this day. Any
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`Case No. CBM2014-00131
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`disagreement regarding the authenticity of these documents should thus go to their
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`weight, not their admissibility.
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`VI. The Thomas Report (Ex. 2201) is an Expert Opinion Relying on Proper
`Evidence
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`TD’s motion also attempts to exclude portions of Ex. 2201 as hearsay.
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`Motion at 7-11. TD raises four principal arguments, each unfounded.
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`First, TD avers that Mr. Thomas did not adopt portions of Ex. 2201 as his
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`testimony in the instant proceeding. Motion at 8. According to TD, this renders the
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`unadopted portions of Ex. 2201 as hearsay. Id. TD’s allegations are irrelevant.
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`TT’s relied on the adopted portions of the Thomas Report in its Response. See
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`POR at 23 (citing Ex. 2201, ¶¶ 19-31). TD acknowledges Mr. Thomas adopted
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`these passages as his testimony in this proceeding. Motion at 8; see also Ex. 1057,
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`¶ 5. Thus, TD’s argument does not touch on any portion of the Thomas Report
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`used in these proceedings. The allegation is immaterial.
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`Second, TD asks the Board to exclude paragraphs 31, 33, and 34 of Ex. 2201
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`as hearsay. Motion at 8-9. In TD’s view, these passages act as “conduit[s] for the
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`expunged Brumfield” testimony. Id. Not so. As an expert, Mr. Thomas may rely on
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`inadmissible evidence “[i]f experts in the particular field would reasonably rely on
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`those kinds of facts.” FRE 703. Here, Mr. Thomas cites Brumfield’s transcript
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`8
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`Patent 7,533,056
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`within a broader discourse of the benefits of the claimed system and the state of the
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`art. See, e.g., Ex. 2201, ¶¶ 29, 30 (describing Mr. Thomas’s expert opinion on the
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`impact of the patented system). It is self-evident that an expert trader would
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`“reasonably rely” on the endorsements and voiced approval of other traders in
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`forming and substantiating his opinion on the influence of the claimed systems.
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`Such evidence is particularly pertinent where, as here, it comes from early adopters
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`of the product within the expert’s realm of expertise. See id., ¶¶ 32, 33.
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`Third, TD contends that paragraphs 32-34 of Ex. 2201 contain inadmissible
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`hearsay. Motion at 10. Similar to the arguments above, TD claims that Mr. Thomas
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`has “acted as a conduit for hearsay statements” from traders who signed
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`declarations—under the penalty of perjury—describing the importance of the
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`patented invention to electronic trading. Motion at 10; Ex. 2201, ¶ 33. TD’s
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`allegations fail to account for the context as a whole. Mr. Thomas considered these
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`statements in forming his opinion regarding public perception of the claimed
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`system. CBM2013-00135, Ex. 1030 at 55:7-18. Mr. Thomas was ready and willing
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`to answer questions regarding how these declarations, as well as his conversation
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`with one of the declarants, factored into the preparation of his declaration. Id. at
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`52:17-55:18. TD opted not to pursue this discovery. Nonetheless, under FRE 703,
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`it was proper for Mr. Thomas to employ the views of the claimed product’s early
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`9
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`adopters to inform and substantiate his general opinion of the claims and art. See
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`Case No. CBM2014-00131
`Patent 7,533,056
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`Ex. 2201, ¶¶ 29-30. TD offers no argument to the contrary.
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`Nothing in TD’s reliance on United States v. Dukagjini, 326 F.3d 45 (2d Cir.
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`2003) runs to the contrary. In Dukagjini, an expert “repeatedly deviated from his
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`expertise” to opine on tangential evidentiary matters far outside the scope of his
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`prowess. See id. at 58-59. Rather than use this evidence to inform or substantiate
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`his opinion, the expert used it to generate over seventy pages of transcripts with
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`evidence irrelevant to his expertise. Id. at 59. Here, however, Mr. Thomas has an
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`expertise in field of the engineering, design, and development of trading interfaces.
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`And—unlike the out-of-his-depth expert in Dukagjini —Mr. Thomas considered
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`the sworn statements of these thirty prominent members of the industry in forming,
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`and confirming, his opinions.
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`Finally, TD alleges that Ex. 2201 is irrelevant and a waste of time because
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`he purportedly did not review the ’056 patent specifically. Motion at 10. This is
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`incorrect. The Thomas Report details the impact of TT’s products had in the
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`industry (¶¶ 19-31). These products implement features of the claimed systems.
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`Moreover, Ex. 2201 contains materials considered in litigation as to the nature of
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`the patent in dispute here. This material provides factual background helpful for
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`patent eligibility and nonobvious assessments.
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`10
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`VII. The Pletz Article (Ex. 2020) is Admissible
`TD asks the Board to exclude the Pletz article (Ex. 2020) because it is
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`Case No. CBM2014-00131
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`purportedly hearsay and inauthentic. Motion at 11-12. TD is incorrect on both
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`counts.
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`TT cited Ex. 2020 only in its Preliminary Response. POPR at 1.
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`Accordingly, TD’s hearsay accusations are unfounded by rule. 37 C.F.R.
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`§ 42.207(c).
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`But TD’s arguments are not just irrelevant, they are also incorrect. TD
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`attacks the Pletz article as hearsay by quarreling with its substance. TD argues, for
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`instance, that Mr. Pletz “does not mention who at Crain’s counted the number of
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`patents issued” to issue their rankings. Motion at 11. TD fundamentally confuses
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`the purpose of Ex. 2020 and the law of hearsay. TT cited the Pletz article to show
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`what others had said about the company. See POPR at 1. It did not rely on
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`Ex. 2020 for any truth value as to its underlying content. Anderson, 417 U.S.
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`at 220. In other words, the Pletz article shows that others viewed TT as innovative
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`and highly-ranked regardless of whether TT is in fact innovate (it is) and
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`regardless of any flaws of Crain’s methodology (or Pletz’s assessment thereof).
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`Ex. 2020 at 2-3. Accordingly, the Pletz article is not hearsay under FRE 801(c)(2).
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`TD’s qualms with the substance of the Pletz article go to, if anything, its weight
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`11
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`and not its admissibility. Such theories are improper in a motion to exclude. See
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`TPG at 48,767.
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`TD also questions Ex. 2020’s authenticity. Motion at 12. TD’s fears are
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`misplaced. First, the article is self-authenticating. It is “printed material purporting
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`to be a . . . periodical,” needing no other authentication. FRE 902(6). Such written
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`material includes electrically stored information. FRE 101(b)(6). In this case,
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`Crain’s Chicago Business purports to be a periodical. Its website includes written
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`information. The information printed from the website is self-authenticating.
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`Second, Ex. 2020 includes sufficient identifying information to authenticate
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`it. FRE 901(b)(4). Ex. 2020 includes a web address at the bottom of each page.
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`This address links to the live source webpage, available to this day. TD can
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`immediately confirm that this document is exactly what it purports to be.
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`FRE 901(a). Moreover, Ex. 2020 contains ample indicia of authenticity such as the
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`Crain’s logo, distinctive website layout and color schemes, date, author, pictures,
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`and graphics to conclude that it is genuine. See FRE 901(b)(4); see also QSC Audio
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`Prods., IPR2014-00127, Paper 43 at 11-12. TT need not authenticate a document
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`to the exclusion of every possible alternative. FRE 901(a). Any dispute as to the
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`sufficiency of this evidence goes to its weight and not admissibility. See FRE
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`104(e). As discussed above, such arguments are improper in a motion to exclude.
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`Trial Practice Guide at 48,767.
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`12
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`VIII. Conclusion
`For at least these reasons, TT requests the Board to deny TD’s motion.
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`Case No. CBM2014-00131
`Patent 7,533,056
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`Dated: June 23, 2015
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`Respectfully submitted,
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`By: /Erika H. Arner/
`Erika H. Arner, Lead Counsel
`Registration No. 57,540
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`Joshua L. Goldberg, Backup Counsel
`Registration No. 59,369
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`Steven F. Borsand, Backup Counsel
`Registration No. 36,752
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`Attorneys for Patent Owner Trading
`Technologies International, Inc.
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`13
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`CBM2014-00131
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing Patent
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`Owner’s Opposition to Petitioner’s Motion to Exclude was served on June 23,
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`2015, via email directed to counsel of record for the Petitioner at the following:
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`Lori A. Gordon
`lgordon-ptab@skgf.com
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`Jonathan M. Strang
`jstrang-ptab@skgf.com
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`Robert E. Sokohl
`rsokohl-ptab@skgf.com
`
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`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
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`/Ashley F. Cheung/
`Ashley F. Cheung
`Case Manager
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`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
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