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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 CORP., TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.,
`Petitioners
`
`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`____________________
`
`Case CBM2014-00133
`Patent 7,676,411
`____________________
`
`
`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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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`
`Table of Contents
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`Relief Requested .............................................................................................. 1
`
`The Board should exclude TT’s district court demonstratives (Exs. 2007 and
`2202) ................................................................................................................ 2
`
`A.
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`B.
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`C.
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`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
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`The Board should exclude these presentations for lack of personal
`knowledge and as improper expert testimony ....................................... 4
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`The Board should exclude these demonstratives for lack of
`authenticity and as improper summaries ............................................... 5
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`E.
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`The Board should exclude these demonstratives as irrelevant ............. 5
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`III. The Board should exclude all of one Thomas Report and portions of the
`other (Exs. 2010 and 2201) .............................................................................. 6
`
`A.
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`B.
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`C.
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`D.
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`Because Mr. Thomas adopted only parts of Ex. 2201 as his testimony
`in this proceeding, the Board should exclude all of Ex. 2010 and the
`unadopted parts of Ex. 2201 as inadmissible hearsay ........................... 6
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`The Board should exclude as hearsay the portions of the Thomas
`Reports that act as a conduit for the expunged Brumfield hearsay ....... 7
`
`The Board should exclude as hearsay the portions of the Thomas
`Reports that act as a conduit for other hearsay statements ................... 8
`
`The Board should exclude both Thomas Reports for a lack of personal
`knowledge and as irrelevant and a waste of time .................................. 9
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`IV. The Board should exclude TT’s video animations (Exs. 2012, 2014, 2048,
`2049, 2203) ....................................................................................................10
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`These video clips are short cartoons that are used to show how actual
`products operated, but there is no evidence that they accurately do so
` .............................................................................................................11
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`The Board should exclude these animations as inadmissible hearsay 11
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`The Board should exclude these animations for lack of personal
`knowledge and as improper expert testimony .....................................12
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`A.
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`B.
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`C.
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`V.
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`The Board should exclude the 31 declarations purportedly from a 2004
`litigation as inadmissible hearsay and for lack of authenticity (Exs. 2016 -
`2046) ..............................................................................................................12
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`VI. The Board should exclude TT’s HCI website printouts (Exs. 2053 - 2061) .13
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`A.
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`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 .............14
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`The Board should exclude these printouts as inadmissible hearsay ...14
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`The Board should exclude these printouts for lack of authenticity ....15
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`VII. Conclusion .....................................................................................................15
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`
`Table of Authorities
`
`Cases:
`United States v. Dukagjinih,
`326 F.3d 45 (2d Cir. 2003) ......................................................................................... 8
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`Exh. No.
`1001
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`1002
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`1003
`1004
`1005
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`1006
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`1007
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`1008
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`1009
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`1010
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`1011
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`1012
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`1013
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`1014
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`Exhibit List
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`
`Description
`U.S. Patent No. 7,676,411 to Kemp, II et al. (“’411 patent”)
`File History of Application Ser. No. 11/585,907, which became the
`’411 patent, as filed and obtained from PAIR (“’411 Patent File
`History”)
`U.S. Patent No. 5,077,665 to Silverman et al. (“Silverman”)
`U.S. Patent No. 5,297,031 to Gutterman et al. (“Gutterman”)
`U.S. Patent No. 5,375,055 to Togher et al. (“Togher”)
`“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”)
`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”)
`Petition to Make Special Under 37 C.F.R. § 1.102(d) for Ser. No.
`09/590,692, filed August 21, 2000 (“Petition to Make Special”)
`Request for Reexamination of U.S. Patent No. 6,772,132, Control
`No. 90/011,250, filed September 22, 2010 (“Reexam Request”)
`Order Denying Request for Reexamination of U.S. Patent No.
`6,772,132, Control No. 90/011,250, mailed December 14, 2010
`(“Order Denying Reexam”)
`Alan Cooper, “About Face: The Essentials of User Interface
`Design,” First Edition, 1995. (“Cooper”)
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`1015
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`1016
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`1017
`1018
`1019
`1020
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`1021
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`1022
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`1023
`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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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`Ben Shneiderman, “Designing the User Interface: Strategies for
`Effective Human-Computer Interaction,” Third Edition, 1998
`(“Shneiderman”)
`Microsoft Computer Dictionary, Fifth Edition, 2002, page 150
`(“Microsoft Computer Dictionary”)
`Robert Deel, “The Strategic Electronic Day Trader,” 2000 (“Deel”)
`U.S. Patent No. 5,263,134 to Paal et al. (“Paal”)
`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”)
` “Calculus with Analytic Geometry," 2nd Edition, by Howard
`Anton, John Wiley & Sons, 1984 (“Calculus”)
`Declaration of David Rho (“Rho Decl.”)
`Curriculum Vitae of David Rho (“Rho CV”)
`List of Materials Considered by David Rho (“Rho List of
`Materials”)
`U.S. Patent No. 6,408,282 to Buist (“Buist”)
`Supplemental Declaration of Kendyl A. Román (“Suppl. Román
`Decl.”)
`TT’s Rule 50(b) Motion for Judgment as a Matter of Law on
`Indirect Infringement or Alternatively For New Trial Pursuant to
`Rule 59, Trading Technologies International, Inc. v. CQG, Inc., et
`al., Case No. 1:05-cv-04811 (N.D. Ill., Apr. 15, 2015) (“TT Mot. for
`JMOL of Indirect Infringement”)
`“Transcript of Proceedings, Vol. 1, Feb. 15, 2015” (Exhibit A)
`accompanying TT’s Rule 50(b) Motion for Judgment as a Matter of
`Law on Indirect Infringement or Alternatively For New Trial
`Pursuant to Rule 59, Trading Technologies International, Inc. v.
`CQG, Inc., et al., Case No. 1:05-cv-04811 (N.D. Ill., Apr. 15, 2015)
`(“CQG Tr.”)
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`TT’s Motion for Judgment as a Matter of Law Concerning PHE and
`Infringement Under the DOE and For a New Trial, Trading
`Technologies International, Inc. v. CQG, Inc., et al., Case No. 1:05-
`cv-04811 (N.D. Ill., Apr. 15, 2015) (“TT’s Motion for JMOL”)
`Transcript of the Deposition of Christopher Thomas, April 28, 2015
`(“Thomas Tr.”)
`157 Cong. Rec. S1360 at S1364 (Mar. 8, 2011)
`Transcript of the Deposition of Christopher Thomas, August 14,
`2007, Trading Technologies International, Inc. v. eSpeed
`International, Ltd., et al., No. 04-cv-05312 (N.D. Ill. Aug. 14, 2007)
`(originally served [but not filed] by Patent Owner as “TRADING
`TECH EXHIBIT 2266”) (“Thomas eSpeed Tr.”)
`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
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`1030
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`1031
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`1032
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`1033
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`1034
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`1035
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`1036
`1037
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`I.
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`Relief Requested
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
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`Petitioner TD Ameritrade asks the Board to exclude dozens of inadmissible
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`exhibits to remove them from the record. It is not enough for the Board to find that
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`this motion is moot because the Board did not rely on the inadmissible exhibits in
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`making its final written decision. If the exhibits remain in the record, Patent Owner
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`TT will be able to cite them again on appeal to the Federal Circuit, and TD
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`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 Petitioner TD Ameritrade with dozens of inadmissible exhibits,
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`knowing that TD Ameritrade would be forced to use up valuable briefing space to
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`address the exhibits on the merits despite their evidentiary shortcomings. TT’s
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`downpour included over 200 pages of district court demonstratives, five animated
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`clips purportedly showing how TT’s product and the prior art operates (but without
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`any evidence that the animations reflect actual software), over two dozen hearsay
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`declarations from another proceeding in the year 2004, and various unauthenticated
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`and hearsay webpages. TD Ameritrade therefore asks the Board to rid this
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`proceeding of all of these inadmissible exhibits.
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`II. The Board should exclude TT’s district court demonstratives (Exs. 2007
`and 2202)
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`
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`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. 1034); 2d Objections at 4-5 (Ex. 1035). At
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`best, these two demonstratives show what TT previously argued in previous
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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).
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`A. These two documents are demonstratives from District Court
`proceedings used here to show the truth of the matters asserted
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`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 embodies its claimed
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`invention, is commercially successful, and solved a problem. POPR at 1, 10, 17, 53
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`(citing slides 2, 8, 30, 34, 53).
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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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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`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 ’411
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`patent here. POR at 7 (citing PTX 6045 as showing a problem with prior art
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`systems), 26 (citing 6052-56 as showing the claimed invention is in a technologic
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`field). TT served an affidavit purporting to authenticate this document as being
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`given “to the District Court in presenting arguments on patent eligibility under 35
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`U.S.C. § 101 in Case No. 05-cv-4811.” Knoblock Decl. ¶ 3 (served as Ex. 2212,
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`filed at Ex. 1036). This affidavit, however, does not purport to establish that any of
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`underlying excerpts and copies are what they claim to be. Rather, it confirms that
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`Exhibit 2202 is 112 pages of additional attorney argument on the merits, despite
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`being submitted here as an 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 26 (citing Ex. 2202 at PTX 6052-56,
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`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. Also, some of the cited portions
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`of Ex. 2007 are expressly attributed to Mr. Brumfield, while other portions appear
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`to indirectly rely on his trial testimony. E.g., Ex. 2007 at 28-33; Ex. 2202 at PTX
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`6045. But the Board has already expunged Mr. Brumfield’s testimony after TT
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`withdrew its agreement to make him available for deposition. Order at 2-3 (Paper
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`41, May 15, 2015). TT cannot use these demonstratives as a conduit to insert such
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`hearsay back into the 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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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`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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`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
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`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
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`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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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`’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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`III. The Board should exclude all of one Thomas Report and portions of the
`other (Exs. 2010 and 2201)
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`TD Ameritrade timely objected to these excerpts from the two Thomas
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`Reports from the CQG litigation. 1st Objections at 7 (Ex. 1034); 2d Objections at
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`2-3 (Ex. 1035). The underlying Reports appear substantially identical, but Exhibit
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`2010 is an excerpt including pages 1-19 and 60 (with pages 20-59 completely
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`redacted), while Exhibit 2201 is a smaller excerpt, containing just pages 1, 5-14
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`and 60. The Board should therefore exclude these Reports as inadmissible hearsay
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`(FRE 802), as irrelevant or confusing and a waste of time (FRE 401-403), and for
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`lack of personal knowledge (FRE 602).
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`A. Because Mr. Thomas adopted only parts of Ex. 2201 as his
`testimony in this proceeding, the Board should exclude all of Ex.
`2010 and the unadopted parts of Ex. 2201 as inadmissible hearsay
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`Both Reports would be hearsay in their entirety but for Mr. Thomas’s last-
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`minute adoption of some portions of Ex. 2201 as his direct testimony in this
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`proceeding. In response to TD Ameritrade’s objections to one of the Thomas
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`Reports, Ex. 2201, TT served a new declaration from Mr. Thomas, in which he
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`adopted paragraphs 15, 19-31, and 33 of that report as his testimony in this
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`proceeding. Thomas Decl. ¶ 5 (Ex 1037, served as Ex. 2211). 1 TT did not serve a
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`
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`similar declaration with respect to Ex. 2010, so it remains hearsay testimony from
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`another proceeding. The Board should therefore exclude all of Ex. 2010 and the
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`unadopted paragraphs 1-14, 16-18, 32, 34, 176, and 177 from Ex. 2201 as hearsay.
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`FRE 802. TT relies on the Thomas Reports for the truth of the matter asserted to
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`support its arguments that many companies invest significant sums designing
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`GUIs, that the claimed GUIs are “highly specialized tools used for mission-critical
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`applications,” and that the claimed invention solved problems with the prior art.
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`(POPR at 5-18, 55 (citing Ex. 2010); POR at 4-16, 48 (citing Ex. 2201)).
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`B.
`
`The Board should exclude as hearsay the portions of the Thomas
`Reports that act as a conduit for the expunged Brumfield hearsay
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`The Board should exclude paragraphs 31, 33 and 34 of both Thomas Reports
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`as hearsay because the Thomas Reports are acting as a conduit for the expunged
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`Brumfield hearsay. FRE 802. As already explained, TT uses the Thomas Reports
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`in an attempt to prove the truth of the matter asserted.
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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
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`cannot be used as a vehicle to evade the hearsay requirement. United States v.
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`1 Mr. Thomas did not select these particular paragraphs and does not know
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`who did. (Ex. 1031, Thomas Depo. at 25-26)
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`Dukagjinih, 326 F.3d 45, 57-59 (2d Cir. 2003). What Brumfield was concerned
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`
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`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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`enters 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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`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
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`not speak with these declarants, yet he paraphrased and liberally quoted their
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`testimony and other similar testimony not of record in this proceeding. Thomas
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`Depo. Tr. at 54-55 (Ex. 1031); Ex. 2201 at ¶¶ 32-34. As in the previous section,
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`this crosses the line from permissibly relying on hearsay to form an expert opinion
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`to impermissibly acting as a conduit for hearsay. Dukagjinih, 326 F.3d at 57-59.
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`D. The Board should exclude both Thomas Reports for a lack of
`personal knowledge and as irrelevant and a waste of time
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`The Board should exclude the Thomas Reports because they do not address
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`the ’411 patent, which he did not review or opine upon even though it is at issue in
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`this proceeding. Instead, TT carefully limited Mr. Thomas’s testimony to the ’132
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`and ’304 patents so that he could not be cross-examined regarding the ’411 patent.
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`(Ex. 1031, Thomas Depo., p. 41(Reports address only the ’132 and ’411 patents) )
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`Mr. Thomas freely admits that he did not review the ’411 patent and does
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`not know how it relates to his Reports regarding the ’132 and ’304 patents:
`
`Q: Could you tell me how [the ’411 patent] does relate, other than
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`being in the same family [as the ’132 and ’304 patents]?
`
`A:
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`Like I said previously, I have not been asked to review the ’411
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`patent for this, so . . . As I sit here today, no.
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`Thomas Depo. Tr. at 26-27. And when he was questioned about the ’411 patent
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`during cross examination, TT’s counsel repeatedly objected to scope and on cue,
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`Mr. Thomas professed his ignorance. Id. at 19 (after scope objection, answering
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`CBM2014-00133
`U.S. Pat. No. 7,676,411
`that he did not opine on the differences between the patents); id. at 29-32 (TT’s
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`
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`counsel repeatedly objecting on basis of scope when Thomas was questioned about
`
`the ’411 patent, stating “He has not opined on the scope of Claim 1 [of the ’411
`
`patent] and what Claim 1 means.”); id. at 41-42 (same) .
`
`To the extent that the Thomas Reports are tangentially related to the ’411
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`patent, they should be excluded as confusing and a waste of time because it they
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`require the Board and the parties to parse each of his statements and determine
`
`whether the differences between the ’411 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 did not.
`
`IV. The Board should exclude TT’s video animations (Exs. 2012, 2014, 2048,
`2049, 2203)
`
`TD Ameritrade timely objected to these videos of unknown provenance. 1st
`
`Objections at 7-12, 57-61 (Ex. 1034); 2d Objections at 5-7 (Ex. 1035). At best,
`
`these animations are attorney argument regarding how TT’s product and the prior
`
`art operates. But TT is improperly using these animations as evidence of how TT’s
`
`product and some prior art actually operates. The Board should therefore exclude
`
`these animations as inadmissible hearsay (FRE 802), for lack of personal
`
`knowledge (FRE 602), as improper opinion testimony (FRE 701/702), for lack of
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`authenticity (FRE 901), and as an improper summary of other documents (FRE
`
`
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`1006).
`
`A. These video clips are short cartoons that are used to show how
`actual products operated, but there is no evidence that they
`accurately do so
`
`These animations are essentially attorney argument used to support more
`
`attorney argument. TT relied on them to support its factual assertions regarding
`
`problems with the prior art and alleged differences between the claimed invention
`
`and the prior art. POPR at 10 (Exs. 2012); Id. at 12 (Ex. 2014); Id. at 13 (Ex.
`
`2049); Id. at 27 (Exs. 2048, 2049); Id. at 53 (Ex. 2048); POR at 30 n.3 (Exs. 2049,
`
`2203). Each clip is a computer-generated cartoon purporting to show how actual
`
`software products are operated. Exs. 2012, 2014, 2048, 2049, 2203. TT did not
`
`respond to any of TD Ameritrade’s timely objections, so there is no evidence
`
`showing who made these cartoons, and whether the animator(s) made them to
`
`show what TT’s attorneys described or by actually viewing and accurately
`
`capturing the operation of the actual products.
`
`B.
`
`The Board should exclude these animations as inadmissible
`hearsay
`
`The Board should exclude these animations as inadmissible hearsay that
`
`does not fall into any exception. FRE 802. As explained above, each clip was made
`
`by unidentified animators who are not testifying in this proceeding, and TT is
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`using each clip to prove the truth of the matter asserted -- that prior art products
`
`
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`suffered from problems allegedly solved by the claimed invention. FRE 801.
`
`C. The Board should exclude these animations for lack of personal
`knowledge and as improper expert testimony
`
`The Board should exclude these videos because TT has not shown that the
`
`animator(s) possessed personal knowledge of the subject matter of the videos. FRE
`
`602. Also, these presentations include what should have been expert testimony
`
`demonstrating how certain products actually work. But TT has not established that
`
`the unnamed animators possessed the necessary expertise or that they based the
`
`videos on facts or data upon which an expert in the field would reasonably rely.
`
`FRE 702, 703. Further, TT may not evade the expert witness requirements of FRE
`
`702 by designating these presentations as lay testimony under FRE 701.
`
`V. The Board should exclude the 31 declarations purportedly from a 2004
`litigation as inadmissible hearsay and for lack of authenticity (Exs. 2016
`- 2046)
`
`TD Ameritrade timely objected to these 31 declarations supposedly
`
`containing testimony regarding TT’s product. 1st Objections at 13-56 (Ex. 1034).
`
`TT impermissibly uses them here as support for its factual assertions that its
`
`claimed invention is an improvement over the prior art and that it a provided a
`
`technical solution to a technological problem. POPR at 13-14, 17-18, 55 (citing
`
`
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`U.S. Pat. No. 7,676,411
`and quoting these exhibits directly); POR at 16 (citing Ex. 2201, one of Mr.
`
`
`
`Thomas’s expert reports, which relies on these declarations).
`
`The Board should exclude these 31 declarations as inadmissible hearsay
`
`outside of any exception. FRE 802. Each declaration was made outside of this
`
`proceeding, and is used to prove the truth of the matter asserted -- that TT’s MD
`
`Trader product was a technical improvement over the prior art. FRE 801.
`
`In addition, the Board should exclude these declarations for lack of
`
`authentication. FRE 901. TT did not respond to TD Ameritrade’s objections on this
`
`ground, and there is no evidence in the record showing that these declarations are
`
`what they purport to be. The Board should not reward TT’s brazen disregard for
`
`the Rules.
`
`VI. The Board should exclude TT’s HCI website printouts (Exs. 2053 -
`2061)
`
`TD Ameritrade timely objected to these unauthenticated printouts of various
`
`webpages containing statements about Human-Computer Interface programs that
`
`TT uses to prove the truth of the matter asserted. 1st Objections at 61-68 (Ex.
`
`1034). The Board should therefore exclude these webpage printouts as
`
`inadmissible hearsay (FRE 802) and for lack of authentication (FRE 901).
`
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`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
`
`universities have HCI programs, and TT improperly uses them here as support for
`
`its factual assertions that its own claimed GUI is technological and solves a
`
`technical problem. Exs. 2053-2061; POR at 25-26, 59; POPR at 49-50. For
`
`example, TT argues that “NASA includes a Human Systems Integration Division
`
`that covers several ‘technical areas,’” and that its claimed GUI is “just like the
`
`interfaces designed by NASA, which solve technical problems.” POR at 25, 59.
`
`Two of these printouts purport to show NASA’s webpages for its Human
`
`Systems Integration Division and its HCI group. Exs. 2053, 2054. The printouts do
`
`not have a web address and TT declined to provide any affidavit explaining who
`
`printed the webpages, when, and from what web site. The remaining printouts
`
`purport to describe the HCI or related programs offered by various educational
`
`institutions. Exs. 2055-2061. For example, Ex. 2055 states that the University of
`
`Washington has a “HCI Degree Option” as part of its “Bachelor of Science in
`
`Human Centered Design & Engineering Program.”
`
`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
`
`
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`US. Pat. No. 7,676,411
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`proceeding, and as explained in the previous section, TT is using the statements on
`
`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
`
`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.
`
`VII. Conclusion
`
`TT should not be rewarded for trying to drown out the issues in a deluge of
`
`inadmissible exhibits. The Board should therefore exclude the above exhibits.
`
`Date: June 12, 2015
`
`l 100 New York Avenue, NW.
`Washington, DC. 20005-3934
`(202) 371-2600
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`
`
`egistration No. 61,724
`.
`
`gistration No. 50,633
`Lori A. Gordon
`
`, Registration No. 36,013
`Robert B. So
`Attorneys for Petitioners
`
`-15-
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`CBM2014-00133
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`US. Pat. No. 7,676,411
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`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. Rodkey (Back-up Counsel)
`FINNEGAN, HENDERSON, FARABOW,
`
`GARRETT & DUNNER, LLP
`
`erika.arner@finnegan.com
`joshua.goldberg@finnegan.com
`kevin.rodkey@finngan.com
`
`Steven F. Borsand (Back-up Counsel)
`TRADING TECHNOLOGIES
`
`INTERNATIONAL, INC.
`steve.borsand@tradingtechnologies.com
`
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`o
`.
`
`
`Registration No. 6
`Attorney for Petitioners
`
`Date: June 12, 2015
`
`l 100 New York Avenue, NW.
`
`Washington, D.C.20005—3934
`(202) 371—2600
`
`2013544ngOCX
`
`