Page 1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ------------------------------------------------X
` TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE,
` INC., and TD AMERITRADE ONLINE HOLDINGS CORP.,
`
` Petitioners,
`
` v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
` Patent Owner.
` ------------------------------------------------X
` Case CBM2014-00131
`
` Patent 7,533,056
`
` Case CBM2014-00133
`
` Patent 7,676,411
`
` Case CBM2014-00135
`
` Patent 6,772,132
`
` Case CBM2014-00137
`
` Patent 7,685,055
`
`
`
` CONFERENCE CALL
`
` Thursday, April 16, 2015
`
` 3:30 p.m.
`
`
`
`
`
`REPORTED BY: ROBIN LaFEMINA
`
`JOB NO. 13985
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`GTL 1026
`CBM 2014-00133
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ------------------------------------------------X
` TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE,
` INC., and TD AMERITRADE ONLINE HOLDINGS CORP.,
`
` Petitioners,
`
` v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
` Patent Owner.
` ------------------------------------------------X
` Case CBM2014-00131
`
` Patent 7,533,056
`
` Case CBM2014-00133
`
` Patent 7,676,411
`
` Case CBM2014-00135
`
` Patent 6,772,132
`
` Case CBM2014-00137
`
` Patent 7,685,055
`
`
`
` CONFERENCE CALL
`
` Thursday, April 16, 2015
`
` 3:30 p.m.
`
`
`
`
`
`REPORTED BY: ROBIN LaFEMINA
`
`JOB NO. 13985
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`GTL 1026
`CBM 2014-00133
`
`
`
`Page 2
`
` A P P E A R A N C E S:
`
` STERNE KESSLER GOLDSTEIN & FOX
`
` 1100 New York Ave. NW Suite 600
` Washington, DC 20005
` 202.371.2540
`
` BY: JONATHAN STRANG, ESQ., of Counsel
` jstrang@skgf.com
`
` LORI GORDON, ESQ., of Counsel
` lgordon@skgf.com
`
` ROBERT SOKOHL, ESQ., of Counsel
` rsokohl@skgf.com
`
` FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`
` 901 New York Avenue, NW
` Washington, DC 20001-4413
` 202 408 4000
`
` BY: JOSHUA GOLDBERG, ESQ., of Counsel
` joshua.goldberg@finnegan.com
`
` CORY BELL, ESQ., of Counsel
` cory.bell@finnegan.com
`
` BEFORE:
`
` SALLY C. MEDLEY
`
` PHILIP J. HOFFMANN
`
`1 2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` JUDGE MEDLEY: Good afternoon,
`
` this is Judge Medley. I have on the
`
` line with me Judge Hoffmann. This is
`
` in regards to CBM 2014 00131, 133, 135
`
` and 137. I would like to take a roll
`
` call beginning with the Petitioner
`
` first.
`
` MR. STRANG: Yes. Good morning,
`
` Your Honor, this is Jonathan Strang of
`
` Sterne Kessler and with me on the line
`
` I have Rob Sokohl and Lori Gordon.
`
` JUDGE MEDLEY: Thank you.
`
` And for Patent Owner?
`
` MR. GOLDBERG: Good afternoon,
`
` Your Honor, this is Joshua Goldberg and
`
` I also have on the line Cory Bell for
`
` Patent Owner, Trading Technologies.
`
` JUDGE MEDLEY: Okay. Thanks.
`
` And I understand that we have a court
`
` reporter; is that correct?
`
` THE REPORTER: Yes.
`
` JUDGE MEDLEY: Okay. All right.
`
` So we understand that Petitioner
`
` requested the call, so we'd like for
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` the Petitioner to sort of walk through
`
` the issues -- actually we got the
`
` e-mail that you sent and that wasn't
`
` supremely clear on what all was going
`
` on, and just to tell the parties,
`
` really a 13 page e-mail is kind of over
`
` the top for the purpose of conference
`
` calls. We kind of want you to stay
`
` high level to just sort of bullets on
`
` what the issues are. We don't need the
`
` back and forth between the parties and
`
` all of that. So just for future
`
` reference.
`
` MR. STRANG: Yes, Your Honor.
`
` JUDGE MEDLEY: So I'd like to
`
` begin with the issue of Mr. Brumfield's
`
` testimony, the timing on that, if you
`
` could explain that, please.
`
` MR. STRANG: Yes, Your Honor.
`
` Trading Technologies has agreed to make
`
` Mr. Brumfield available for cross, but
`
` only for two hours and limited to the
`
` scope of the testimony that they
`
` actually cited in the PORs. Trading
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` Technologies relied on Brumfield's
`
` testimony in two different proceedings,
`
` so under routine discovery, we are
`
` entitled to 14 hours of cross. We
`
` tried to reach an agreement with the
`
` other side lowering our request to just
`
` five hours. Trading Technologies
`
` offered just two hours and we haven't
`
` been able to close that gap between two
`
` and five hours. So we, TD Ameritrade,
`
` Petitioner, are asking the Board to
`
` order up to five hours of cross as
`
` routine discovery and, in the
`
` alternative, if the Board decides that
`
` this is not routine discovery for any
`
` reason, permission to file a motion for
`
` additional discovery so that -- of five
`
` hours of cross, so it may fully address
`
` Mr. Brumfield's testimony and our reply.
`
` JUDGE MEDLEY: Okay. Patent
`
` Owner?
`
` MR. GOLDBERG: Yes. So a lot of
`
` the issue I think is actually coming
`
` down to whether this is routine
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` discovery or whether this is additional
`
` discovery. We did not submit an
`
` affidavit with testimony from
`
` Brumfield. All we submitted was copies
`
` of his previous trial testimony and
`
` under the rules routine discovery is
`
` limited to cross-examination of
`
` affidavit testimony. For that reason,
`
` it's our view that this is actually
`
` additional discovery and under
`
` additional discovery, in order to take
`
` the testimony, in order to take direct
`
` deposition testimony, the rules
`
` actually require that the party seeking
`
` the deposition needs to identify the
`
` scope and content of the deposition.
`
` Our dispute here is not about whether
`
` it's two or five hours. We can
`
` actually agree to the five hours. The
`
` dispute is that our view is that
`
` because this is additional discovery,
`
` this is just something that we are
`
` agreeing to do between the parties that
`
` they have not yet motioned the Board
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` for it. We are simply willing to agree
`
` that the scope of his testimony be
`
` limited to the relevant issues in his
`
` testimony as opposed to a bunch of
`
` other portions of the trial testimony
`
` that are related to things like a
`
` different company, eSpeed, trying to
`
` buy Trading Technologies. So that's
`
` really where the dispute lies, and
`
` since, again, routine discovery only
`
` applies to cross-examination of
`
` affidavit testimony, which we have not
`
` given in this case for Brumfield, this
`
` should be an additional discovery
`
` issue, and while we have previously
`
` asked Petitioner to identify the scope,
`
` they haven't been willing to do
`
` anything other than just say it's
`
` routine discovery and the scope is
`
` limited to the testimony. We don't
`
` know what that testimony is. Clearly
`
` the testimony about eSpeed trying to
`
` buy TT is totally irrelevant to these
`
` proceedings and there shouldn't be any
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` deposition on it, and we need to know
`
` where that line is before we can either
`
` agree to let them depose Mr. Brumfield
`
` under additional discovery or say that
`
` we can't and force a briefing on the
`
` issue.
`
` JUDGE MEDLEY: Okay. So I just
`
` want to clarify a few things. It
`
` sounds like the parties are in
`
` agreement that Mr. Brumfield can be
`
` cross-examined. Whether we call it
`
` routine or additional, you know the
`
` scope of cross should always be to
`
` relevant issues in the case. It
`
` shouldn't be to, you know, something
`
` that's outside of the scope of
`
` certainly the testimony of the
`
` individual or what the person relied on
`
` with respect to the proffering party,
`
` what they relied on in support of the
`
` arguments that they make. So I think
`
` whether or not -- it sounds like -- it
`
` sounds like, Patent Owner, not so much
`
` that you agree that five hours is too
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` much, it's whether or not you agree on
`
` the scope of what the cross-examination
`
` should be.
`
` MR. GOLDBERG: Right. And as
`
` Your Honor just noted, so long as the
`
` cross-examination, if you want to call
`
` it that, even though we would call it
`
` additional discovery, so long as it's
`
` limited to the testimony that Patent
`
` Owner actually relied on in the Patent
`
` Owner responses, we could rely on the
`
` five hours. We don't know that it
`
` would be necessary given that the
`
` entire testimony that we cited only
`
` took 30 minutes, but if Petitioner
`
` needs five hours to depose him on that
`
` 30 minutes, that's fine with us.
`
` JUDGE MEDLEY: Okay. So
`
` Petitioner -- all right. That seems
`
` reasonable to me, that it should be
`
` contained within what they, you know,
`
` that your request should be contained
`
` within the scope of what Mr.
`
` Brumfield's original testimony was
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 10
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` relied upon for.
`
` MR. STRANG: Yes, Your Honor, as
`
` a matter of fact, had the agreement of
`
` five hours or the offer to agree to
`
` five hours been made before, we
`
` probably wouldn't be discussing this on
`
` this call.
`
` JUDGE MEDLEY: Okay.
`
` Well, let me just throw this out
`
` there then. Everybody agrees to five
`
` hours. If there's an issue with
`
` respect to whether or not the
`
` questioning goes astray, you know, you
`
` can always call the Board.
`
` MR. STRANG: Yes, Your Honor.
`
` JUDGE MEDLEY: Okay. So that's
`
` off the table.
`
` MR. GOLDBERG: Thank you, Your
`
` Honor.
`
` MR. STRANG: Thank you, Your
`
` Honor.
`
` JUDGE MEDLEY: You're welcome.
`
` Okay. Let's go back to the
`
` first issue with respect to I believe
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` it's only with respect to the 131 and
`
` the 137 proceedings with respect to
`
` this, quote, unquote, opposition
`
` against the Japanese counterparts. If
`
` you can explain that, please,
`
` Petitioner.
`
` MR. STRANG: Yes, Your Honor.
`
` This is Jon Strang for Petitioner.
`
` The GE Ameritrade is using a
`
` document which we'll refer to as TSE,
`
` which stands for Tokyo Stock Exchange,
`
` as prior art in these two proceedings.
`
` Trading Technologies is arguing that
`
` TSE is not prior art and that Mr.
`
` Kawashima's deposition which was taken
`
` back in 2005 in Japan is not reliable
`
` because Mr. Kawashima, his employer
`
` apparently filed a, quote, opposition
`
` against the Japanese counterpart of the
`
` patent issue, end quote, and that's a
`
` quote from the POR.
`
` JUDGE MEDLEY: Wait. I've got
`
` to -- slow down. I've got to figure
`
` out what's what. Okay. So they rely
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 12
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` on Kawashima's declaration in support
`
` of their argument that TSE is not prior
`
` art, it's not publicly available -- was
`
` not publicly available at the time?
`
` MR. STRANG: Not quite, Your
`
` Honor. We rely on Mr. Kawashima and
`
` they say that his testimony is not
`
` reliable because he's biased, because
`
` they allege that TS -- Tokyo Stock
`
` Exchange, his employer, filed an
`
` opposition against the Japanese
`
` counterpart of the patent at issue, but
`
` they have not provided that opposition.
`
` So in order to address -- in order to
`
` address this issue of bias, we need to
`
` see that opposition, and since it's
`
` Japanese, we need to see it in English.
`
` JUDGE MEDLEY: So that was filed
`
` at the Japanese Patent Office?
`
` MR. STRANG: I don't know, Your
`
` Honor, we have not seen it.
`
` JUDGE MEDLEY: Okay. And it's
`
` not something that you could readily
`
` get a hold of?
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 13
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` MR. STRANG: Not to our
`
` knowledge, Your Honor. They didn't
`
` give us any patent number or signing
`
` information, but what goes even further
`
` is that even if we could pull it, it
`
` would be in Japanese, Your Honor, and
`
` 42 -- 37 CFR 42.63(b) says, quote, when
`
` a party relies on a document, unquote,
`
` it is required to produce a translation
`
` of the document in English. They rely
`
` on this opposition, so it's our
`
` position that they are, under the
`
` rules, required to produce an English
`
` translation of this document.
`
` JUDGE MEDLEY: If they had put
`
` it into the record, but they didn't
`
` even put it into the record; correct?
`
` MR. STRANG: Well, the Rule
`
` 42.63 doesn't have that requirement,
`
` Your Honor. It actually states, and
`
` I'm reading from 42.63(b). Now,
`
` translation required. Next sentence,
`
` when a party relies on a document or is
`
` required to produce a document in a
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 14
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` language other than English, a
`
` translation of the document into
`
` English and an affidavit attesting to
`
` the accuracy of the translation must be
`
` filed with the document. So we're
`
` reading the when a party relies on a
`
` document. Now, if we'd been in
`
` District Court, we probably would have
`
` asked to strike this accusation as
`
` unsupported, but we're not there and
`
` this is in the POR, so it's a matter of
`
` fundamental fairness that they produce
`
` the evidence that they rely upon in
`
` this allegation.
`
` JUDGE MEDLEY: Well, we also
`
` have a rule that -- I don't know, you
`
` know, right off the top of my head I
`
` can't remember what it is, but it is
`
` fundamental to say if someone proffers
`
` up an argument and they say, you know,
`
` they don't give us the evidence to
`
` support it to give a factual basis,
`
` then we just don't -- we don't credit
`
` or give it weight. So I'll let Patent
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 15
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` Owner talk about this issue right now.
`
` MR. GOLDBERG: Yes. So, Your
`
` Honor, you just actually hit one of the
`
` main points here, but I do just want to
`
` back up and make sure that I have it
`
` clear as to exactly what's going on
`
` here and I'll just quote for you the
`
` actual sentence that this comes up in
`
` in the Patent Owner responses. All we
`
` say is that Exhibit 1007 is the
`
` deposition of Mr. Kawashima, an
`
` employee of TSE, which filed an
`
` opposition against the Japanese
`
` counterpart of the patent at issue in
`
` the litigation in which the deposition
`
` was taken. Full stop. We don't
`
` include any exhibit, we don't include
`
` any other citations, and with respect
`
` to the rules on routine discovery and
`
` in particular the rule about handing
`
` over copies of exhibits and things like
`
` that, the PTO’s AIA blog has actually
`
` said that that rule does not require
`
` that a party create materials or
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` provide materials not cited, and since
`
` we didn't cite anything, I don't see
`
` why we should be required to provide
`
` it. As Your Honor actually recognized,
`
` it's within the Board's discretion to
`
` determine what weight things should be
`
` given and that's basically all we have
`
` to say on the matter.
`
` JUDGE MEDLEY: Okay. Did you
`
` submit evidence that this individual is
`
` or was at the time of his deposition,
`
` the transcript that you're relying on,
`
` at that time he was an employee of TSE?
`
` MR. GOLDBERG: We did not submit
`
` evidence of that, but I will note that
`
` the deposition testimony itself, which
`
` was submitted by Petitioner, actually
`
` right in the early pages of it says
`
` that he was an employee of TSE at that
`
` time.
`
` JUDGE MEDLEY: Okay. So back to
`
` Petitioner, you know, I don't think
`
` that we would compel them, it sounds
`
` like you want us to compel them to give
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 17
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` up this information. If they don't
`
` give it up, you know, it is what it is.
`
` We give the -- we give it little or no
`
` weight with respect to what they're
`
` citing it for.
`
` MR. STRANG: Yes, Your Honor.
`
` JUDGE MEDLEY: So to me, it
`
` seems sort of like a nonstarter,
`
` nonissue, but I'm willing to hear
`
` anything else you have to say about it.
`
` MR. STRANG: No, Your Honor, if
`
` that's the Board's position, we're fine
`
` with that.
`
` JUDGE MEDLEY: Okay.
`
` So that addresses that issue.
`
` Then we trace back to the next
`
` issue. With respect to the Thomas
`
` reports, could you please explain that?
`
` MR. STRANG: Yes, Your Honor.
`
` The Thomas reports have a little bit
`
` difficult history, so if you'll bear
`
` with me for a short minute. The Thomas
`
` expert reports, and there's two of
`
` them, between all four proceedings, at
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 18
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` least one, if not both, of the expert
`
` reports show up in the proceeding, and
`
` they're largely identical. One is a
`
` first corrected report of Mr. Thomas
`
` and another one is a second corrected
`
` expert report of Mr. Thomas, and the
`
` short excerpts that we have appear
`
` that -- the overlapping excerpts that
`
` we have appear that the documents are
`
` substantively identical and perhaps
`
` some corrections were made at some
`
` portions of the document that's not
`
` immediately apparent.
`
` Trading Technologies filed these
`
` excerpts into the proceeding, and then
`
` when we objected on the basis of
`
` hearsay, they -- and among other
`
` things, they provided -- they served a
`
` declaration for Mr. Thomas adopting
`
` these expert reports or portions of
`
` these expert reports as his testimony.
`
` So it's our position -- it is our
`
` position that that doesn't remove from
`
` Trading Technologies the obligation
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 19
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` under routine discovery to serve any,
`
` quote, any exhibit cited in a paper,
`
` and since the expert reports were cited
`
` in the paper, it's our position that
`
` the full and complete expert reports
`
` should be provided so that we can see
`
` all of this testimony in context.
`
` JUDGE MEDLEY: Okay. So, again,
`
` I'm going to ask you again what I asked
`
` you earlier, these are -- these reports
`
` are not readily available to you?
`
` MR. STRANG: No, Your Honor, and
`
` as a matter of fact, portions that are
`
` redacted, it states right in the
`
` document redacted, highly confidential
`
` information, and so since the Board
`
` doesn't know this, the parties
`
` discussed issues of confidential
`
` information and at Trading
`
` Technologies' request, the attorneys
`
` for TD Ameritrade, myself, Lori Gordon
`
` and Rob Sokohl, signed acknowledgments
`
` agreeing to be bound by the Board's
`
` standing order, standing Protective
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 20
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` Order, Your Honor.
`
` JUDGE MEDLEY: For the Thomas
`
` reports, did they submit them as --
`
` under a motion to seal?
`
` MR. STRANG: No, Your Honor,
`
` they filed the Thomas reports -- they
`
` filed just excerpts. It's Exhibits
`
` 2010 and 2201 in the various
`
` proceedings, Your Honor.
`
` JUDGE MEDLEY: But I was just
`
` curious. You said you all agree to be
`
` bound by the Protective Order, the
`
` Board's Protective Order with respect
`
` to what?
`
` MR. STRANG: With respect to
`
` everything, Your Honor, that the
`
` standing Protective Order binds us that
`
` if something is marked Confidential,
`
` that we will follow the rules of the
`
` Protective Order, which is in essence
`
` don't show the stuff to anybody else.
`
` JUDGE MEDLEY: So does the
`
` exhibits that you just mentioned, 2010
`
` and the 2201, those were marked --
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 21
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` they're under some kind of Protective
`
` Order? Were they sealed in any of
`
` these cases?
`
` MR. STRANG: I don't know that,
`
` Your Honor, but I assume that they were
`
` based on the fact that Trading
`
` Technologies marked them that they were
`
` redacted for highly confidential
`
` information, but we did -- the two --
`
` these two excerpts, they're overlapping
`
` excerpts, and we can see, for example,
`
` Exhibit 2201 is missing pages 2 through
`
` 5, which included Mr. Thomas's
`
` background, the information he
`
` considered and so forth, and pages 15
`
` through 19 which address Trading
`
` Technologies' alleged invention, its
`
` benefits, the prior art system, the
`
` level of ordinary skill in the art and
`
` claim construction. So through this
`
` overlapping, we can see that the
`
` redactions are inconsistent, so we are
`
` not sure exactly how much of this is
`
` confidential. But if it is
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 22
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` confidential, we are bound -- we've
`
` already agreed to be bound by the
`
` Board's standing Protective Order, Your
`
` Honor.
`
` JUDGE MEDLEY: Okay. Patent
`
` Owner, can I hear your thoughts on this
`
` issue?
`
` MR. GOLDBERG: Yes. So first
`
` just to I guess clear up the background
`
` a little bit, the -- as you recognized
`
` earlier, the e-mail to the Board was
`
` very long and included 13 pages or so.
`
` At the beginning of the parties'
`
` discussions about what Petitioner
`
` wanted from Patent Owner and what
`
` Patent Owner would be willing to give
`
` them, the list of documents the
`
` Petitioner was seeking was very large,
`
` more than 50 documents, and in that
`
` back and forth, one of the things that
`
` we were doing was trying to just give
`
` over everything that we could because
`
` we wanted to be reasonable, and
`
` regardless of whether we thought they
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 23
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` were actually entitled to it, we wanted
`
` to just resolve the issue so that we
`
` didn't end up being on a call like
`
` this, and we've actually handed over
`
` more than 50 of the documents that they
`
` had requested and we have given over
`
` all the ones that do not have
`
` confidential or third party
`
` confidential information. Now, as to
`
` these Thomas reports, well, the first
`
` one was served and it was just a longer
`
` version, and it was just with our
`
` Patent Owner preliminary response, and
`
` it had some portions that were
`
` redacted, we don't think that there's
`
` any inconsistency with the second
`
` report that we filed with our Patent
`
` Owner response. What we did in the
`
` Patent Owner response is we were
`
` actually referencing the exhibit that
`
` had been submitted in the CQG District
`
` Court proceedings and the exhibit that
`
` we filed here was an exact copy of the
`
` exhibit that was filed in the District
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 24
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` Court proceedings. So it wasn't that
`
` there were pages missing because we
`
` redacted them, it's just those pages
`
` weren't relevant to the District Court
`
` 101 issues where it was submitted. So
`
` those pages weren't submitted to the
`
` District Court, and for that reason
`
` weren't submitted here.
`
` Now, the portions of the -- let
`
` me start by saying we can and we will
`
` give to Petitioner the full version of
`
` that second Thomas report subject to
`
` the same type of redactions that were
`
` applied to the first report that was
`
` served with the preliminary response.
`
` The redactions that will exist in that
`
` document and do already exist in the
`
` first version of their report are all
`
` redactions related to third party
`
` confidential information. This was
`
` actually an expert report focusing on
`
` infringement issues submitted in the
`
` District Court litigation with CQG and
`
` we are not at liberty, Protective Order
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` or otherwise, to be handing over that
`
` third party confidential information,
`
` which is not relevant to any of the
`
` issues here since the infringement of
`
` CQG's products are not at issue in this
`
` CBM proceeding.
`
` Beyond that, I do just want to
`
` note that given the third party
`
` confidential information which would
`
` actually I think require a subpoena to
`
` issue in order to be able to bring it
`
` into this proceeding, that is something
`
` that actually requires even more an
`
` additional discovery and the Board has
`
` previously ruled that there are various
`
` additional factors, specifically that
`
` the person seeking it needs to identify
`
` as specifically as possible the
`
` testimony it seeks, it needs to explain
`
` why the information is relevant, needed
`
` in the proceeding, and it also needs to
`
` describe all efforts made by Petitioner
`
` to obtain that information. This is in
`
` the IBM v. Intellectual Ventures case,
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 26
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
` IPR2014-01385.
`
` JUDGE MEDLEY: Okay. So let me
`
` just back up, so you -- have you
`
` discussed your proposition with them
`
` that you would give up the second
`
` report with the redactions or is this
`
` coming to light now?
`
` MR. GOLDBERG: No. That's
`
` just -- we were just looking it over
`
` just before this call, and we can do
`
` that, and as Petitioner recognized,
`
` substantively it's basically the same.
`
` The only reason why we had the
`
` difference between the reports is
`
` because when we were submitting the
`
` report in our Patent Owner response, we
`
` chose to just specifically give to you
`
` guys the exhibit that was cited in the
`
` District Court proceedings since that's
`
` what the District Court judge was
`
` relying on.
`
` JUDGE MEDLEY: Okay. So
`
` Petitioner, does that appease you at
`
` this point?
`
`TransPerfect Legal Solutions
`212-400-8845 -- Depo@transperfect.com
`
`
`
`Page 27
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Conference Call - 4/16/15
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
