`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TD AMEPJTRADE HOLDING CORP., TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.,
`Petitioners
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`
`Case CBM20 14-00131
`Patent 7,533,056
`
`PETITIONER TD AMERITRADE’S
`MOTION TO EXPUNGE EXHIBIT
`
`Mail Stop "PA TENT BOARD"
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`Case CBM2014-00131 of
`U.S. Patent No. 7,533,056
`Petitioners TD Ameritrade Holding Corp., TD Ameritrade, Inc., and TD
`
`Ameritrade Online Holdings Corp. ("TD Ameritrade") respectfully asks the Board
`
`to expunge Exhibit 1006, Memorandum from James M. Hilmert to eSpeed file
`
`regarding direct examination of TSE’s 30(b)(6) witness (December 5, 2005),
`
`("Hilmert memo") from the record of this proceeding.
`
`TD Ameritrade seeks to expunge the Hilmert memo because it is a
`
`confidential document of a third party, BGC Partners, Inc. ("BGC," formerly
`
`eSpeed, Inc.), and TD Ameritrade’s counsel in this CBM incorrectly believed that
`
`the Hilmert memo was already public information when it filed its Petition. BGC
`
`did not authorize TD Ameritrade to file the memo with its Petition for this Covered
`
`Business Method Review proceeding or use it for any other purpose. Once aware
`
`of the error, TD Ameritrade’s counsel took immediate action in an attempt to
`
`remove the Hilmert memo from the public record. BGC has also asked TD
`
`Ameritrade to take all reasonable steps to remove it from the public record.
`
`Importantly, the Hilmert memo is not needed to decide whether to institute
`
`this CBM. The deposition transcript described in the Hilmert memo is the best
`
`evidence of the contents of the deposition, and was submitted as Exhibit 1007.
`
`Further, the Hilmert memo was cited only once in the Petition, in conjunction with
`
`the underlying deposition transcript. Petition at 17
`
`("See [Hilmert memo] at 2
`
`(Exh. 1006); Depo. Transcript at 0012-33 (Exh. 1007)"). Finally, Patent Owner
`
`1
`
`
`
`Case CBM2014-00131 of
`U.S. Patent No. 7,533,056
`Trading Technologies attended the deposition that is the subject of the Hilmert
`
`memo. As such, Patent Owner will not be prejudiced by the expungement.
`
`Patent Owner Trading Technologies previously opposed and still opposes
`
`expungement, arguing it does not understand why TD Ameritrade seeks to
`
`expunge. Patent Owner’s complaint is not credible. TD Ameritrade informed
`
`Patent Owner of the error by email on July 16, 2014, that it did not have
`
`authorization to file the confidential Hilmert memo. TD Ameritrade further
`
`discussed the inadvertent disclosure of the Hilmert memo at a conference call with
`
`the Board on July 17, 2014. (Ex. 3001 at 33-36).
`
`Accordingly, TD Ameritrade asks the Board to expunge the Hilmert memo
`
`from the record of this proceeding.
`
`Respectfully submitted,
`
`Lori . Gordon (Reg. No. (cid:246)33)
`Jonathan M. Strang (Reg. No. 61,724)
`A tiorn eys for Petitioners
`
`Date: August 25, 2014
`1100 New York Avenue, N. W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`2
`
`
`
`Case CBM2014-00131 of
`U.S. Patent No. 7,533,056
`CERTIFICATION OF SERVICE
`
`The undersigned hereby certifies that the foregoing PETITIONER TD
`
`AMERITRADE’S MOTION TO EXPUNGE EXHIBIT was served on August
`
`25, 2014, in its entirety via email on the following counsel of record:
`
`Lead Counsel Erika H. Amer (Reg. No. 57,540)
`erika. arner@finnegan. corn
`
`Back-up Counsel Steven F. Borsand (Reg. No. 36,752)
`Steve. B orsandgtradingtechnologies. corn
`
`Back-Up Counsel
`
`Joshua L. Goldberg (Reg. No. 59,369)
`joshua.goldberg@finnegan.com
`
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`Lori A. Gordon
`Lead Attorney for Petitioners
`Registration No. 50,633
`
`Date: August 25, 2014
`
`1100 New York Avenue, N. W.
`Washington, D.C.20005-3934
`(202) 371-2600
`
`1 895934_2.DOCX
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`3
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