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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 CBM2014-00133
`Patent 7,676,411
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`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
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`Case No. CBM2014-00133
`Patent 7,676,411
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`TABLE OF CONTENTS
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`Preliminary Statement .................................................................................. 1
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`Standard ......................................................................................................... 1
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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 First Thomas Report (Ex. 2010) was Properly Cited in TT’s
`Preliminary Response and is not Hearsay................................................... 5
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`VI. The Second Thomas Report (Ex. 2201) is an Expert Opinion
`Relying on Proper Evidence ......................................................................... 6
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`VII. TT’s Video Animations (Exs. 2012, 2014, 2048, 2049, 2203) Are
`Not Offered for the Truth of the Matter Asserted ..................................... 9
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`VIII. TT’s Reliance on the Thirty-One Litigation Declarations (Exs.
`2016-2046) is Proper is both Responses ..................................................... 10
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`IX. The HCI Printouts (Exs. 2053-2061) Are Admissible .............................. 12
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`A.
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`The HCI Printouts are Exceptions to the Hearsay Prohibition or
`are Not Hearsay at All ......................................................................... 12
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`B.
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`The HCI Printouts Are Properly Authenticated .................................. 13
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`X. Conclusion .................................................................................................... 15
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`i
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`I.
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`Preliminary Statement
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`Case No. CBM2014-00133
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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 also argues that government websites and published articles—which
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`remain available 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. Trial Practice Guide, 77 Fed. Reg. 48,756, 48,758 (Aug. 14,
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`2012). As the party moving to exclude evidence, TD bears the burden of proof on
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`1
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`inadmissibility. 37 C.F.R. § 42.20(c).
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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 at 2. TT cited this exhibit as general background regarding TT’s
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`formation, company size, success of its MD Trader product, and general
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`demonstratives. POPR (Paper 18) at 1, 10, 17, 53. TT did not cite to Ex. 2007 in its
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`Patent Owner’s Response (“POR”). TT’s reliance on these demonstratives was
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`proper under the 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 rely on evidence from other proceedings. 37 C.F.R. § 42.207(c)
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`(“The preliminary response shall not present new testimony evidence beyond that
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`already of record . . . .”); TPG at 48,764 (“The preliminary response may present
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`evidence other than new testimonial evidence to demonstrate that no review should
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`be instituted.”) (emphasis added). As such, TD’s criticism of TT’s citation of
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`Exhibit 2007, not repeated in the Patent Owner’s Response (“POR”), is misplaced.
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`As discussed, for example, at pages 9-10 and 52-53 of the POPR, Exhibit
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`2007 is demonstrative in nature and illustrates exemplary differences between TT’s
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`technology and the prior art. To narrow the issues before the Board, TT agrees to
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`rely on Exhibit 2007 as a demonstrative only, not to establish the truth of the
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`matters for which it is cited on pages 1 and 17 of the POPR. As such, TD’s hearsay
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`objections are unfounded. TD’s objections under FRE 602, 702, and 703 fail for
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`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 any
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`passage or figure of these exhibits served as a “summary” of a prior litigation. Nor
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`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, personal knowledge, and the rules governing
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`3
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`expert testimony. Motion at 2-6. Due to the demonstrative nature of the exhibit, as
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`well as its intended use, TD’s arguments fail.
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`TT relied on Ex. 2202 to show how purported experts of TD’s co-defendants
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`had characterized the field of the ’411 patent as technological. POR at 26. TT also
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`cited Ex. 2202 as a general demonstrative, illustrating features detailed in the text
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`of the response. Id. at 7. In other words, Ex. 2202 was not offered to establish the
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`truth of these characterizations. Id. at 7, 26.
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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, 220 (1974); Abrams v. Dep’t of Public Safety, 764 F.3d 244, 252 (2d Cir.
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`2014). And because TT offered these exhibits to show what statements were made,
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`or general demonstratives, the personal knowledge (FRE 602) and opinion
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`testimony requirements (FRE 701, 702) are immaterial. Such evidence is not
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`witness testimony. Finally, TD’s attacks along the lines of the best evidence rule
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`fail for the same reasons above. The content of the exhibit is not at issue, and TT
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`never claimed Ex. 2202 “summarized” voluminous writings, so these rules do not
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`apply. See 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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`V. The First Thomas Report (Ex. 2010) was Properly Cited in TT’s
`Preliminary Response and is not Hearsay
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`TD next challenges Exhibit 2010, an expert report from Mr. Thomas in a
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`parallel litigation, which TT cited only in its Preliminary Response. Motion at 6-
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`10. TD attacks Ex. 2010 on three grounds, each of them improper.
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`First, TD accuses TT of relying on Ex. 2010 as hearsay in its Preliminary
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`Response. Motion at 7. This criticism is misplaced for the same reasons explained
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`above. Specifically, a Patent Owner cannot submit new testimonial evidence with
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`its Preliminary Response and therefore must rely on evidence from other
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`proceedings. 37 C.F.R. § 42.207(c); TPG at 48,764. Here, TT cited Ex. 2010 to
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`explain industry conventions, generic inefficiencies prior to TT’s products, and
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`general statements about TT’s business. E.g., POPR at 5-7, 9, 10, 14, 16-18, 55.
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`Similar statements were also explained in TT’s Patent Owner’s Response and
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`supported by expert testimony, although TT does not directly cite Ex. 2010.
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`Accordingly, TD’s claims are unfounded.
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`Second, TD takes issue with paragraphs 31, 33, and 34 of Ex. 2010 as
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`allegedly acting as “conduit[s] for the expunged Brumfield testimony.” Motion
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`at 7. But TD’s attacks are again baseless. By Rule, TT could not submit new
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`testimonial evidence in its Preliminary Response. And TT never cited Ex. 2010 in
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`its Patent Owner’s Response. TD’s accusations therefore do not survive scrutiny.
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`Third, TD challenges paragraphs 32-34 of Ex. 2010 as hearsay. Motion at 8-
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`9. Given that Exhibit 2010 is an expert report prepared for use in a Federal District
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`Court, reliance on facts and data beyond the expert’s personal knowledge, even if
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`otherwise inadmissible, is proper under FRE 703. Because the declarations relied
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`upon by Mr. Thomas are proper bases for an expert opinion, paragraphs 32-34 and
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`the declarations should not be excluded. HTI Holdings, Inc. v. Hartford Cas. Ins.
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`Co., No. 10-cv-06021, 2011 WL 4595799, at *3 (D. Ore. Aug. 24, 2011) (“hearsay
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`is admissible as a type of fact or data reasonably relied upon by an expert.”
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`Further, the declarations demonstrate the mental impressions of those in the
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`industry falling within FRE 803(3)’s exception to the hearsay rule.
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`VI. The Second Thomas Report (Ex. 2201) is an Expert Opinion Relying on
`Proper Evidence
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`TD attacks the second Thomas Report (Ex. 2201) on the same grounds as
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`the first (Ex. 2010). Motion 6-10. TD’s claims are equally unfounded.
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`First, Mr. Thomas adopted paragraphs 15, 19-31, and 33 of Ex. 2201 as his
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`testimony in the instant proceeding. Ex. 1037, ¶ 5. TT relied only on these
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`paragraphs in its Patent Owner’s Response. See POR at 4, 16, 48. Moreover, TD
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`took the opportunity to depose Mr. Thomas after TT filed its Patent Owner’s
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`response. Ex. 1031. Thus, TD’s claims of hearsay are both irrelevant and incorrect.
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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 7. 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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`otherwise inadmissible evidence “[i]f experts in the particular field would
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`reasonably rely on those kinds of facts.” FRE 703; HTI Holdings, Inc, 2011 WL
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`4595799, at *3. Here, Mr. Thomas cites Brumfield’s transcript within a broader
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`discourse of the benefits of the claimed system and the state of the art. Ex. 2010,
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`¶¶ 29-30 (describing Mr. Thomas’s expert opinion on the impact of the patented
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`system for these proceedings). 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 sworn evidence is particularly pertinent where, as here, it comes from early
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`adopters of the product within the expert’s realm of expertise. See id., ¶ 33.
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`Third, TD contends that paragraphs 32-34 of Ex. 2201 contain inadmissible
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`hearsay. Motion at 8. 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. Ex. 2201, ¶ 33. TD’s allegations fail to
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`account for the context as a whole. Mr. Thomas considered these statements in
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`forming his opinion regarding public perception of the claimed system. CBM2014-
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`00135, Ex. 1030 at 55:7-18. Mr. Thomas was ready and willing to answer
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`questions regarding how these declarations, as well as his conversation with one of
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`the declarants, factored into the preparation of his declaration. Id. at 52:17-55:18.
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`TD opted not to pursue this discovery. Nonetheless, under FRE 703, it was proper
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`for Mr. Thomas to employ the views of the claimed product’s early adopters to
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`inform and substantiate his general opinion of the claims and art. See Ex. 2201,
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`¶¶ 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 ’411 patent specifically. Motion at 9-10. 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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`VII. TT’s Video Animations (Exs. 2012, 2014, 2048, 2049, 2203) Are Not
`Offered for the Truth of the Matter Asserted
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`TD seeks exclusion of TT’s video animations (Exs. 2012, 2014, 2048, 2049,
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`2203) as hearsay, lacking personal knowledge, improper opinion testimony,
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`lacking authenticity, and an improper summary. Mot. at 10-12. Trying to support
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`these contentions, TD theorizes that TT is “using these animations as evidence of
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`how TT’s product and some prior art actually operates.” Id. at 10. This argument
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`misstates the purpose of the video animations, and their demonstrative nature.
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`As is clear from page 30 of the Patent Owner’s Response, TT offered these
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`materials as demonstratives—examples of problems generally present in the
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`technical field, the recognition of these problems in the specification of the ’411
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`patent, TT’s novel, non-obvious solution to these problems, and how the claimed
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`invention improved over the prior art. POR at 30 n.3 (describing 2049 and 2203 as
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`“examples”). Citations to Exhibits 2012, 2014, 2048, and 2049 in TT’s Preliminary
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`Response also show their demonstrative nature. See POPR at 8-10 (Ex. 2012
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`demonstrates col. 2:60-67), 12 (Ex. 2014 demonstrates col. 2:60-67 and 7:47-53),
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`23-27 (Ex. 2048 demonstrates differences from prior art), and 13 (Ex. 2049
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`demonstrates col. 7:15-46).
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`Because these exhibits are demonstrative in nature, they are not hearsay
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`under FRE 801(c)(2). Nor are they the summary of expert testimony subject to
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`FRE 701 or 702. Finally, TD never articulates any way in which these exhibits lack
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`authenticity (FRE 901) or are improper summaries (FRE 1006). Thus, TD has
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`waived any such arguments.
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`VIII. TT’s Reliance on the Thirty-One Litigation Declarations (Exs. 2016-
`2046) is Proper is both Responses
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`Repeating its challenge to Mr. Thomas’s report, TD criticizes TT for citing
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`to thirty-one declarations (Exs. 2016-2046) describing industry praise of TT’s
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`innovations. Motion at 12-13. These hearsay and authenticity challenges fail.
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`As explained above, TT cited this evidence in its Preliminary Response due
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`to prohibitions on new testimony under 37 C.F.R. § 42.207(c). The declarations
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`were cited to demonstrate the mental impressions of those in the industry, falling
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`within the well-established exception to the hearsay rule set forth in FRE 803(3).
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`Further, because these declarations are a proper basis for an expert declaration,
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`10
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`they should not be excluded. FRE 703; HTI Holdings, Inc, 2011 WL 4595799, at
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`*3. Mr. Thomas considered these sworn statements—made under penalty of
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`perjury—in forming and confirming his opinion regarding public perception of the
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`claimed system. It is reasonable for him to employ the views of the claimed
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`product’s early adopters to inform and substantiate his general opinion of the
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`claims and art. See id., ¶¶ 29-30. TD had the opportunity to ask about these
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`declarants and chose not to explore that line of questioning at Mr. Thomas’s
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`deposition.
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`TD’s authentication challenge also fails. TT included these declarations in
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`the litigation materials provided to TD. See POPR at 17 n.4; Ex. 2047. Record
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`evidence sets forth the style of these proceedings and the Bates ranges of the
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`declarations. Ex. 2047. TD has ready access to these documents to confirm their
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`authenticity. FRE 901(a). Yet TD did not seek to depose any of the signatories to
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`Exs. 2016-2046 and has not alleged any inaccuracy in the declarations. TD’s
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`dispute implicates the weight of these documents, not their admissibility.
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`FRE 104(e). Such claims are improper in a motion to exclude. TPG at 48,767.
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`Further, TT need not authenticate these documents to Mr. Thomas to adduce
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`his expert opinion. FRE 703. In other words, for the same reasons described above,
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`Mr. Thomas has properly relied on these exhibits in forming his expert opinions.
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`And TT’s citation the Thomas Report remains proper.
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`11
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`IX. The HCI Printouts (Exs. 2053-2061) Are Admissible
`TD requests exclusion of the HCI printouts (Exs. 2053-2061) as hearsay and
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`lacking authentication. Motion at 13-15. Neither assertion is 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 2053-2061 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 14. Rather, TT provides these exhibits to
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`corroborate that GUIs are technology. See POR at 22. Exhibits 2053-2061
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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 14. 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. Exs. 2053 and 2054 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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`Exs. 2055-2061 are also admissible under FRE 807. These exhibits reflect
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`printouts from websites regarding courses offered at various educational
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`institutions. There would be no reason for these institutions to misrepresent the
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`courses they offer or their descriptions thereof. Each website remains available to
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`the public at the addresses provided. See infra. Thus, these statements have
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`circumstantial guarantees of trustworthiness. FRE 807(a)(1).
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`Exhibits 2055-2061 also evidence material facts 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). It would have been cost
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`prohibitive (and pedantic) for both TT and TD to depose an agent from each and
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`every one of these schools for the sole purpose of confirming their course offerings
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`match their online listings. To request this stresses form to the literal exclusion of
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`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 2055-2061. FRE 807(b). And each of the exhibits lists
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`names and 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.
`The Board should dismiss TD’s argument that Exhibits 2053-2061 are
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`somehow inauthentic. Exhibits 2055-2061 include direct links to their sources at
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`the top of each page. See Exs. 2055-2061. All of these sources remain available to
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`this day and are accessible by either typing in a URL or querying public search
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`engines with terms from the exhibits. TD can immediately confirm their content.
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`TD cannot genuinely question that these documents are what they purport to be.
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`Moreover, these exhibits also include additional indicia of authenticity such as
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`school logos, familiar colors and formats, dates, addresses, contact information,
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`etc., sufficient to determine that these websites are authentic. FRE 901(b)(4); see
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`also QSC Audio Prods. v. Crest Audio, IPR2014-00127, Paper 43 at 11-12.
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`Exhibits 2053 and 2054 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). Exhibits 2053 and 2054 are websites purporting to be published by
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`NASA, a federal agency (i.e., a public authority). Documents on government
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`websites are thus self-authenticating. See, e.g., Hispanic Broad. Corp. v. Educ.
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`Media Found., 2003 WL 22867633, at *5, n.5 (C.D. Cal. Oct. 30, 2003);
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`Langbord v. U.S. Dept. of Treasury, 2011 WL 2623315, at *14 (E.D. Pa. July 5,
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`2011). These documents also include sufficient 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., to conclude that they are genuine. FRE 901(b)(4); see also
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`QSC Audio, Paper 43 at 11-12. Exs. 2053 and 2054 remain available to this day.
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`Any disagreement as to the authenticity of these documents should thus go to their
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`weight and not their admissibility.
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`X. Conclusion
`For at least these reasons, TT respectfully requests denial of TD’s motion.
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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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`CBM2014-00133
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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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`16
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