`
` 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 1025
`CBM 2014-00135
`
`
`
`Page 2
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` 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
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` 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
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` the Petitioner to sort of walk through
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` the issues -- actually we got the
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` e-mail that you sent and that wasn't
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` supremely clear on what all was going
`
` on, and just to tell the parties,
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` really a 13 page e-mail is kind of over
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` the top for the purpose of conference
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` calls. We kind of want you to stay
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` high level to just sort of bullets on
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` what the issues are. We don't need the
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` back and forth between the parties and
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` all of that. So just for future
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` 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
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` 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
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` five hours. Trading Technologies
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` offered just two hours and we haven't
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` been able to close that gap between two
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` 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
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` this is not routine discovery for any
`
` reason, permission to file a motion for
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` additional discovery so that -- of five
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` 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
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` down to whether this is routine
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` discovery or whether this is additional
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` 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
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` affidavit testimony. For that reason,
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` it's our view that this is actually
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` additional discovery and under
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` additional discovery, in order to take
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` the testimony, in order to take direct
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` deposition testimony, the rules
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` actually require that the party seeking
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` the deposition needs to identify the
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` scope and content of the deposition.
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` Our dispute here is not about whether
`
` it's two or five hours. We can
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` 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
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` agreeing to do between the parties that
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` they have not yet motioned the Board
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` for it. We are simply willing to agree
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` that the scope of his testimony be
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` limited to the relevant issues in his
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` testimony as opposed to a bunch of
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` other portions of the trial testimony
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` that are related to things like a
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` different company, eSpeed, trying to
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` buy Trading Technologies. So that's
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` really where the dispute lies, and
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` since, again, routine discovery only
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` applies to cross-examination of
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` affidavit testimony, which we have not
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` given in this case for Brumfield, this
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` should be an additional discovery
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` issue, and while we have previously
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` asked Petitioner to identify the scope,
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` they haven't been willing to do
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` anything other than just say it's
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` routine discovery and the scope is
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` limited to the testimony. We don't
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` know what that testimony is. Clearly
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` the testimony about eSpeed trying to
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` buy TT is totally irrelevant to these
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` proceedings and there shouldn't be any
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` deposition on it, and we need to know
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` where that line is before we can either
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` agree to let them depose Mr. Brumfield
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` under additional discovery or say that
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` we can't and force a briefing on the
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` issue.
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` 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
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` cross-examined. Whether we call it
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` routine or additional, you know the
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` scope of cross should always be to
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` relevant issues in the case. It
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` shouldn't be to, you know, something
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` that's outside of the scope of
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` certainly the testimony of the
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` individual or what the person relied on
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` with respect to the proffering party,
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` what they relied on in support of the
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` arguments that they make. So I think
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` whether or not -- it sounds like -- it
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` sounds like, Patent Owner, not so much
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` that you agree that five hours is too
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` much, it's whether or not you agree on
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` the scope of what the cross-examination
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` should be.
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` 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
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` additional discovery, so long as it's
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` limited to the testimony that Patent
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` Owner actually relied on in the Patent
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` Owner responses, we could rely on the
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` five hours. We don't know that it
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` would be necessary given that the
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` entire testimony that we cited only
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` took 30 minutes, but if Petitioner
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` needs five hours to depose him on that
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` 30 minutes, that's fine with us.
`
` JUDGE MEDLEY: Okay. So
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` Petitioner -- all right. That seems
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` reasonable to me, that it should be
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` contained within what they, you know,
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` that your request should be contained
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` within the scope of what Mr.
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` Brumfield's original testimony was
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` relied upon for.
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` MR. STRANG: Yes, Your Honor, as
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` a matter of fact, had the agreement of
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` five hours or the offer to agree to
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` five hours been made before, we
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` probably wouldn't be discussing this on
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` this call.
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` JUDGE MEDLEY: Okay.
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` Well, let me just throw this out
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` there then. Everybody agrees to five
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` hours. If there's an issue with
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` respect to whether or not the
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` questioning goes astray, you know, you
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` can always call the Board.
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` MR. STRANG: Yes, Your Honor.
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` JUDGE MEDLEY: Okay. So that's
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` off the table.
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` MR. GOLDBERG: Thank you, Your
`
` Honor.
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` MR. STRANG: Thank you, Your
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` Honor.
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` JUDGE MEDLEY: You're welcome.
`
` Okay. Let's go back to the
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` first issue with respect to I believe
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` it's only with respect to the 131 and
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` the 137 proceedings with respect to
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` this, quote, unquote, opposition
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` against the Japanese counterparts. If
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` you can explain that, please,
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` Petitioner.
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` MR. STRANG: Yes, Your Honor.
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` This is Jon Strang for Petitioner.
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` The GE Ameritrade is using a
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` document which we'll refer to as TSE,
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` which stands for Tokyo Stock Exchange,
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` as prior art in these two proceedings.
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` Trading Technologies is arguing that
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` TSE is not prior art and that Mr.
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` Kawashima's deposition which was taken
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` back in 2005 in Japan is not reliable
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` because Mr. Kawashima, his employer
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` apparently filed a, quote, opposition
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` against the Japanese counterpart of the
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` patent issue, end quote, and that's a
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` quote from the POR.
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` JUDGE MEDLEY: Wait. I've got
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` to -- slow down. I've got to figure
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` out what's what. Okay. So they rely
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` on Kawashima's declaration in support
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` of their argument that TSE is not prior
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` art, it's not publicly available -- was
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` not publicly available at the time?
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` MR. STRANG: Not quite, Your
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` Honor. We rely on Mr. Kawashima and
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` they say that his testimony is not
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` reliable because he's biased, because
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` they allege that TS -- Tokyo Stock
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` Exchange, his employer, filed an
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` opposition against the Japanese
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` counterpart of the patent at issue, but
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` they have not provided that opposition.
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` So in order to address -- in order to
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` address this issue of bias, we need to
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` see that opposition, and since it's
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` Japanese, we need to see it in English.
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` JUDGE MEDLEY: So that was filed
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` at the Japanese Patent Office?
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` MR. STRANG: I don't know, Your
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` Honor, we have not seen it.
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` JUDGE MEDLEY: Okay. And it's
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` not something that you could readily
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` get a hold of?
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` MR. STRANG: Not to our
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` knowledge, Your Honor. They didn't
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` give us any patent number or signing
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` information, but what goes even further
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` is that even if we could pull it, it
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` would be in Japanese, Your Honor, and
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` 42 -- 37 CFR 42.63(b) says, quote, when
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` a party relies on a document, unquote,
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` it is required to produce a translation
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` of the document in English. They rely
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` on this opposition, so it's our
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` position that they are, under the
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` rules, required to produce an English
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` translation of this document.
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` JUDGE MEDLEY: If they had put
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` it into the record, but they didn't
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` even put it into the record; correct?
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` MR. STRANG: Well, the Rule
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` 42.63 doesn't have that requirement,
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` Your Honor. It actually states, and
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` I'm reading from 42.63(b). Now,
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` translation required. Next sentence,
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` when a party relies on a document or is
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` required to produce a document in a
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` language other than English, a
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` translation of the document into
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` English and an affidavit attesting to
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` the accuracy of the translation must be
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` filed with the document. So we're
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` reading the when a party relies on a
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` document. Now, if we'd been in
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` District Court, we probably would have
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` asked to strike this accusation as
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` unsupported, but we're not there and
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` this is in the POR, so it's a matter of
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` fundamental fairness that they produce
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` the evidence that they rely upon in
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` this allegation.
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` JUDGE MEDLEY: Well, we also
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` have a rule that -- I don't know, you
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` know, right off the top of my head I
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` can't remember what it is, but it is
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` fundamental to say if someone proffers
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` up an argument and they say, you know,
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` they don't give us the evidence to
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` support it to give a factual basis,
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` then we just don't -- we don't credit
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` or give it weight. So I'll let Patent
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` Owner talk about this issue right now.
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` 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
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` actual sentence that this comes up in
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` in the Patent Owner responses. All we
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` say is that Exhibit 1007 is the
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` deposition of Mr. Kawashima, an
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` employee of TSE, which filed an
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` opposition against the Japanese
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` counterpart of the patent at issue in
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` the litigation in which the deposition
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` was taken. Full stop. We don't
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` include any exhibit, we don't include
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` any other citations, and with respect
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` to the rules on routine discovery and
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` in particular the rule about handing
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` over copies of exhibits and things like
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` that, the PTO’s AIA blog has actually
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` said that that rule does not require
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` that a party create materials or
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` provide materials not cited, and since
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` we didn't cite anything, I don't see
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` why we should be required to provide
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` it. As Your Honor actually recognized,
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` it's within the Board's discretion to
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` determine what weight things should be
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` given and that's basically all we have
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` to say on the matter.
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` JUDGE MEDLEY: Okay. Did you
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` submit evidence that this individual is
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` or was at the time of his deposition,
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` the transcript that you're relying on,
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` at that time he was an employee of TSE?
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` MR. GOLDBERG: We did not submit
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` evidence of that, but I will note that
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` the deposition testimony itself, which
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` was submitted by Petitioner, actually
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` right in the early pages of it says
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` that he was an employee of TSE at that
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` time.
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` JUDGE MEDLEY: Okay. So back to
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` Petitioner, you know, I don't think
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` that we would compel them, it sounds
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` like you want us to compel them to give
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` up this information. If they don't
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` give it up, you know, it is what it is.
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` We give the -- we give it little or no
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` weight with respect to what they're
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` citing it for.
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` MR. STRANG: Yes, Your Honor.
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` JUDGE MEDLEY: So to me, it
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` seems sort of like a nonstarter,
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` nonissue, but I'm willing to hear
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` anything else you have to say about it.
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` MR. STRANG: No, Your Honor, if
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` that's the Board's position, we're fine
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` with that.
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` JUDGE MEDLEY: Okay.
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` So that addresses that issue.
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` Then we trace back to the next
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` issue. With respect to the Thomas
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` reports, could you please explain that?
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` MR. STRANG: Yes, Your Honor.
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` The Thomas reports have a little bit
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` difficult history, so if you'll bear
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` with me for a short minute. The Thomas
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` expert reports, and there's two of
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` them, between all four proceedings, at
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` least one, if not both, of the expert
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` reports show up in the proceeding, and
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` they're largely identical. One is a
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` first corrected report of Mr. Thomas
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` and another one is a second corrected
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` expert report of Mr. Thomas, and the
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` short excerpts that we have appear
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` that -- the overlapping excerpts that
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` we have appear that the documents are
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` substantively identical and perhaps
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` some corrections were made at some
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` portions of the document that's not
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` immediately apparent.
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` Trading Technologies filed these
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` excerpts into the proceeding, and then
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` when we objected on the basis of
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` hearsay, they -- and among other
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` things, they provided -- they served a
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` declaration for Mr. Thomas adopting
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` these expert reports or portions of
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` these expert reports as his testimony.
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` So it's our position -- it is our
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` position that that doesn't remove from
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` Trading Technologies the obligation
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` under routine discovery to serve any,
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` quote, any exhibit cited in a paper,
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` and since the expert reports were cited
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` in the paper, it's our position that
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` the full and complete expert reports
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` should be provided so that we can see
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` all of this testimony in context.
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` JUDGE MEDLEY: Okay. So, again,
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` I'm going to ask you again what I asked
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` you earlier, these are -- these reports
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` are not readily available to you?
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` MR. STRANG: No, Your Honor, and
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` as a matter of fact, portions that are
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` redacted, it states right in the
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` document redacted, highly confidential
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` information, and so since the Board
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` doesn't know this, the parties
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` discussed issues of confidential
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` information and at Trading
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` Technologies' request, the attorneys
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` for TD Ameritrade, myself, Lori Gordon
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` and Rob Sokohl, signed acknowledgments
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` agreeing to be bound by the Board's
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` standing order, standing Protective
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` Order, Your Honor.
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` JUDGE MEDLEY: For the Thomas
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` reports, did they submit them as --
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` under a motion to seal?
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` MR. STRANG: No, Your Honor,
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` they filed the Thomas reports -- they
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` filed just excerpts. It's Exhibits
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` 2010 and 2201 in the various
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` proceedings, Your Honor.
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` JUDGE MEDLEY: But I was just
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` curious. You said you all agree to be
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` bound by the Protective Order, the
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` Board's Protective Order with respect
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` to what?
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` MR. STRANG: With respect to
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` everything, Your Honor, that the
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` standing Protective Order binds us that
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` if something is marked Confidential,
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` that we will follow the rules of the
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` Protective Order, which is in essence
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` don't show the stuff to anybody else.
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` JUDGE MEDLEY: So does the
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` exhibits that you just mentioned, 2010
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` and the 2201, those were marked --
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` they're under some kind of Protective
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` Order? Were they sealed in any of
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` these cases?
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` MR. STRANG: I don't know that,
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` Your Honor, but I assume that they were
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` based on the fact that Trading
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` Technologies marked them that they were
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` redacted for highly confidential
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` information, but we did -- the two --
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` these two excerpts, they're overlapping
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` excerpts, and we can see, for example,
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` Exhibit 2201 is missing pages 2 through
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` 5, which included Mr. Thomas's
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` background, the information he
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` considered and so forth, and pages 15
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` through 19 which address Trading
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` Technologies' alleged invention, its
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` benefits, the prior art system, the
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` level of ordinary skill in the art and
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` claim construction. So through this
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` overlapping, we can see that the
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` redactions are inconsistent, so we are
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` not sure exactly how much of this is
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` confidential. But if it is
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` confidential, we are bound -- we've
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` already agreed to be bound by the
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` Board's standing Protective Order, Your
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` Honor.
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` JUDGE MEDLEY: Okay. Patent
`
` Owner, can I hear your thoughts on this
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` issue?
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` MR. GOLDBERG: Yes. So first
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` just to I guess clear up the background
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` a little bit, the -- as you recognized
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` earlier, the e-mail to the Board was
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` very long and included 13 pages or so.
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` At the beginning of the parties'
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` discussions about what Petitioner
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` wanted from Patent Owner and what
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` Patent Owner would be willing to give
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` them, the list of documents the
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` Petitioner was seeking was very large,
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` more than 50 documents, and in that
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` back and forth, one of the things that
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` we were doing was trying to just give
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` over everything that we could because
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` we wanted to be reasonable, and
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` regardless of whether we thought they
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` were actually entitled to it, we wanted
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` to just resolve the issue so that we
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` didn't end up being on a call like
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` this, and we've actually handed over
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` more than 50 of the documents that they
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` had requested and we have given over
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` all the ones that do not have
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` confidential or third party
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` confidential information. Now, as to
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` these Thomas reports, well, the first
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` one was served and it was just a longer
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` version, and it was just with our
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` Patent Owner preliminary response, and
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` it had some portions that were
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` redacted, we don't think that there's
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` any inconsistency with the second
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` report that we filed with our Patent
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` Owner response. What we did in the
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` Patent Owner response is we were
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` actually referencing the exhibit that
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` had been submitted in the CQG District
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` Court proceedings and the exhibit that
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` we filed here was an exact copy of the
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` exhibit that was filed in the District
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` Court proceedings. So it wasn't that
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` there were pages missing because we
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` redacted them, it's just those pages
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` weren't relevant to the District Court
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` 101 issues where it was submitted. So
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` those pages weren't submitted to the
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` District Court, and for that reason
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` weren't submitted here.
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` Now, the portions of the -- let
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` me start by saying we can and we will
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` give to Petitioner the full version of
`
` that second Thomas report subject to
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` the same type of redactions that were
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` applied to the first report that was
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` served with the preliminary response.
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` The redactions that will exist in that
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` document and do already exist in the
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` first version of their report are all
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` redactions related to third party
`
` confidential information. This was
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` actually an expert report focusing on
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` infringement issues submitted in the
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` District Court litigation with CQG and
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` we are not at liberty, Protective Order
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` or otherwise, to be handing over that
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` third party confidential information,
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` which is not relevant to any of the
`
` issues here since the infringement of
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` CQG's products are not at issue in this
`
` CBM proceeding.
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` Beyond that, I do just want to
`
` note that given the third party
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` 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
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` additional factors, specifically that
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` the person seeking it needs to identify
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` 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
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` to obtain that information. This is in
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` the IBM v. Intellectual Ventures case,
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` IPR2014-01385.
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` 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
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` 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
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` relying on.
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` JUDGE MEDLEY: Okay. So
`
` Petitioner, does that appease you at
`
` this point?
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