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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
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`____________________
`
`Case CBM2014-00135
`Patent 6,772,132
`____________________
`
`
`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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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`
`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
`
`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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`III. The Board should exclude all of one Thomas Report and portions of the
`other (Exs. 2010 and 2201) .............................................................................. 5
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`A.
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`B.
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`C.
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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
`
`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
`
`IV. The Board should exclude TT’s video animations (Exs. 2012, 2014, 2048,
`2049, 2203) ...................................................................................................... 9
`
`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 9
`
`B.
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`The Board should exclude these animations as inadmissible hearsay 10
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`- i -
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`The Board should exclude these animations for lack of personal
`knowledge and as improper expert testimony .....................................10
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`
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`C.
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`V.
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`The Board should exclude the X_Trader webpage as hearsay and for lack of
`authenticity (Ex. 2015) ..................................................................................11
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`VI. 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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`VII. The Board should exclude TT’s HCI website printouts (Exs. 2053 - 2061) .13
`
`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 .............13
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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 ....14
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`VIII. The Board should exclude TT’s invalidity contention response in the CQG
`litigation as hearsay (Ex. 2084) .....................................................................15
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`IX. Conclusion .....................................................................................................15
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`- ii -
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`
`Table of Authorities
`
`
`United States v. Dukagjinih,
`326 F.3d 45 (2d Cir. 2003) ......................................................................................... 7
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`- iii -
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`Exh. No.
`1001
`1002
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`1003
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`1004
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`1005
`1006
`1007
`1008
`1009
`1010
`1011
`1012
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`1013
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`1014
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`1015
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`1016
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`1017
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`Exhibit List
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`
`Description
`U.S. Patent No. 6,772,132 to Kemp, II et al. (“ʼ132 patent”)
`Petition to Make Special Under 37 C.F.R. § 1.102(d) for Ser. No.
`09/590,692, filed August 21, 2000
`Request for Reexamination of U.S. Patent No. 6,772,132, Control
`No. 90/011,250, filed September 22, 2010
`Order Denying Request for Reexamination of U.S. Patent No.
`6,772,132, Control No. 90/011,250, mailed December 14, 2010
`Expert Declaration of Kendyl A. Román (“Román Decl.”)
`Expert Declaration of David Rho (“Rho Decl.”)
`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”)
`CA Publication No. CA 2,305,736 to May (“May”)
`U.S. Patent No. 5,263,134 to Paal et al. (“Paal”)
`“Futures/Option Purchasing System Trading Terminal Operation
`Guidelines,” Tokyo Stock Exchange (“TSE JP”)
`Certified Translation of “System for Buying and Selling Futures and
`Options Transaction Terminal Operational Guidelines” (“TSE”)
`Certificate of Translation for “System for Buying and Selling
`Futures and Options Transaction Terminal Operational Guidelines”
`(“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”)
`Robert Deel, “The Strategic Electronic Day Trader,” 2000 (“Deel”)
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`- iv -
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`Exh. No.
`1018
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`1019
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`1020
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`1021
`1022
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`1023
`1024
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`1025
`1026
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`1027
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`1028
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`1029
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`1030
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`
`Description
`Alan Cooper, “About Face: The Essentials of User Interface
`Design,” First Edition, 1995. (“Cooper”)
`Ben Shneiderman, “Designing the User Interface: Strategies for
`Effective Human-Computer Interaction,” Third Edition, 1998
`(“Shneiderman”)
`Microsoft Computer Dictionary, Fifth Edition, 2002, pages 150
`(“Microsoft Computer Dictionary”)
`Curriculum Vitae of Kendyl A. Román (“Román CV”)
`List of Materials Considered by Kendyl A. Román (“Román List of
`Materials”)
`Curriculum Vitae of David Rho (“Rho CV”)
`List of Materials Considered by David Rho (“Rho List of
`Materials”)
`April 16, 2015 Hearing Transcript
`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”)
`Exhibit A (“Transcript of Proceedings, Vol. 1, Feb. 25, 2015”)
`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.”)
`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.”)
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`
`Exh. No.
`1031
`1032
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`1033
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`1034
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`1035
`1036
`
`Description
`157 Cong. Rec. S1360 (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 (served as Ex. 2212)
`Declaration of Chris Thomas
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`- vi -
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`I.
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`Relief Requested
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`
`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, over 700 pages
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`of attorney argument on the merits in the form of a response to invalidity
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`contentions, five animated clips purportedly showing how TT’s product and the
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`prior art operates (but without any evidence that the animations reflect actual
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`software), over two dozen hearsay declarations from another proceeding in the
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`year 2004, and various unauthenticated and hearsay webpages. TD Ameritrade
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`asks the Board to rid this proceeding of all of these inadmissible exhibits.
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`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. 1033); 2d Objections at 4-5 (Ex. 1034). 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), and as improper and unauthenticated
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`copies and summaries of other documents (FRE 901, 1002-1004, 1006).
`
`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, 9, 16, 48
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`(citing slides 2, 8, 30, 35-61). Because this demonstrative does not identify which
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`patents it addresses, its relevancy is unclear.
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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 patent claims are eligible
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`for patenting because GUIs are technological and its alleged invention solved a
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`
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`problem, and is cited to support those same arguments here. POR at 6 (citing PTX
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`6045 as showing a problem with prior art systems), 17 (citing 6052-56 as showing
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`the claimed invention is in a technologic field). TT served an affidavit purporting
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`to authenticate this document as being given “to the District Court in presenting
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`arguments on patent eligibility under 35 U.S.C. § 101 in Case No. 05-cv-4811.”
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`Knoblock Decl. ¶ 3 (served as Ex. 2212, filed as Ex. 1035). This affidavit,
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`however, does not purport to establish that any of underlying excerpts and copies
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`are what they claim to be. Rather, it confirms that Exhibit 2202 is 112 pages of
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`additional attorney argument on the merits, despite being submitted here as an
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`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 17 (citing Ex. 2202 at PTX 6052-56,
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`which includes quotes attributed to various individuals). But these quoted
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`
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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.
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`Also, some of the cited portions of Ex. 2007 are expressly attributed to Mr.
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`Brumfield, while other portions appear to indirectly rely on his trial testimony.
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`E.g., Ex. 2007 at 28-33; Ex. 2202 at PTX 6045. But the Board has already
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`expunged Mr. Brumfield’s testimony after TT withdrew its agreement to make him
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`available for deposition. Order at 2-3 (Paper 41, May 15, 2015). TT cannot use
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`these demonstratives as a conduit to insert such hearsay back into the evidentiary
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`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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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`apply the law to the facts, or that they based their opinions on facts or data upon
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`
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`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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`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 6-7 (Ex. 1033); 2d Objections at
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`2-3 (Ex. 1034). 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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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`redacted), while Exhibit 2201 is a smaller excerpt, containing just pages 1, 5-14
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`
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`and 60. The Board should exclude portions or all of these two Reports as
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`inadmissible hearsay (FRE 802) because Mr. Thomas adopted only portions of his
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`previous testimony as his testimony in this proceeding, and because the Thomas
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`Report is impermissibly being used as vehicle to evade the hearsay requirement.
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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 331 of that report as his testimony in this
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`proceeding. Thomas Decl. ¶ 5 (Ex. 1036 (served as Ex. 2211)). TT did not serve a
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`similar declaration with respect to Ex. 2010, so it remains hearsay testimony from
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`another proceeding.
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`The Board should therefore exclude all of Ex. 2010 and the unadopted
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`paragraphs 1-14, 16-18, 32, 34, 176, and 177 from Ex. 2201 as hearsay outside of
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`1 Mr. Thomas did not select these particular paragraphs and does not know
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`who did. . Thomas Depn. at 25-26.
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`any exceptions. FRE 802. TT relies on the Thomas Reports for the truth of the
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`
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`matter asserted to support its arguments that many companies invest significant
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`sums designing GUIs, that the claimed GUIs are “highly specialized tools used for
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`mission-critical applications,” and that the claimed invention solved problems with
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`the prior art. (POPR at 5-17, 50 (citing Ex. 2010); POR at 2-12, 40 (citing Ex.
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`2201)).
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`B.
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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
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`The Board should exclude paragraphs 31, 33 and 34 of both Thomas Reports
`
`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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`Dukagjinih, 326 F.3d 45, 57-59 (2d Cir. 2003). What Brumfield was concerned
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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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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`The Board should therefore exclude these paragraphs rather than allow TT to
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`
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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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`testimony and other similar testimony not of record in this proceeding. . (Ex. 1030,
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`Thomas Depn. at 54-55; Ex. 2201 at ¶¶ 32-34) As in the previous section, this
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`crosses the line from permissibly relying on hearsay to form an expert opinion to
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`impermissibly acting as a conduit for hearsay. Dukagjinih, 326 F.3d at 57-59.
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`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
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`Objections at 8, 11-13, 57-61 (Ex. 1033); 2d Objections at 5-7 (1034). At best,
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`these animations are attorney argument regarding how TT’s product and the prior
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`art operates. But TT is improperly using these animations as evidence of how TT’s
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`product and some prior art actually operates. The Board should therefore exclude
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`these animations as inadmissible hearsay (FRE 802), for lack of personal
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`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
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`problems with the prior art and alleged differences between the claimed invention
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`and the prior art. POPR at 10 (Exs. 2012 and 2014); Id. at 13 (Ex. 2049); Id. at 24
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`(Exs. 2048 and 2049); POR at 21 n.5 (Exs. 2049 and 2203). Each clip is a
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`computer-generated cartoon purporting to show how actual software products are
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`operated. Exs. 2012, 2014, 2048, 2049, 2203. TT did not respond to any of TD
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`CBM2014-00135
`U.S. Pat. No. 6,772,132
`Ameritrade’s timely objections, so there is no evidence showing who made these
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`
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`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
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`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 in the previous section,
`
`each clip was made by unidentified animators who are not testifying in this
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`proceeding, and TT is using each clip to prove the truth of the matter asserted --
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`that prior art products suffered from problems allegedly solved by the claimed
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`invention. FRE 801.
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`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
`
`unnamed animator(s) possessed personal knowledge of the subject matter of the
`
`videos. FRE 602. Also, these presentations include what should have been expert
`
`opinion 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
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`requirements of FRE 702 by designating these presentations as lay testimony under
`
`
`
`FRE 701.
`
`V. The Board should exclude the X_Trader webpage as hearsay and for
`lack of authenticity (Ex. 2015)
`
`TD Ameritrade timely objected to this document, which purports to be a
`
`printout of a Trading Technologies webpage discussing a product called X_Trader.
`
`1st Objections at 13-14 (Ex. 1033).
`
`The Board should exclude this document as inadmissible hearsay not within
`
`any exception. FRE 802. It consists of statements made outside of this proceeding
`
`and is used here to prove the truth of the matter asserted regarding TT’s products.
`
`FRE 801. Specifically, TT relies on this document to support its factual assertion
`
`that TT has an X_Trader product with an MD Trader tool, and that this product is
`
`“TT’s flagship product today.” POPR at 14.
`
`In addition, the Board should exclude this document for lack of authenticity.
`
`FRE 901. TT did not respond to TD Ameritrade’s objection on this ground. And
`
`despite this printout purportedly reflecting TT’s own website, there is no evidence
`
`in the record that this printout is what it purports to be. The Board should not
`
`excuse TT’s brazen disregard for the Rules.
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`VI. 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 14-56. TT
`
`impermissibly uses these declarations 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, 16-17, 52 (citing
`
`and quoting these exhibits directly); POR at 11-12 (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.
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`VII. 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 61-69 (Ex.
`
`1033). The Board should therefore exclude these webpage printouts as
`
`inadmissible hearsay (FRE 802) and for lack of authentication (FRE 901).
`
`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 17, 51; POPR at 43-44. 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 17, 51.
`
`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
`
`
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`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
`
`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.
`
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`VIII. The Board should exclude TT’s invalidity contention response in the
`CQG litigation as hearsay (Ex. 2084)
`
`TD Ameritrade timely objected to this document, which consists of713
`
`pages of TT’s invalidity arguments in the CQG litigation. 1st Objections at 80-81
`
`(Ex. 1033). The Board should exclude this document as inadmissible hearsay not
`
`within any exception. FRE 802. It consists of legal arguments and factual
`
`assertions made outside of this proceeding and is being used here to prove the truth
`
`of the matter asserted regarding the content of the prior art and the scope of the
`
`claims. FRE 801; POPR at 25 n.4, 65 (citing in support of assertion that that the
`
`claimed invention contains features not found in the prior art).
`
`IX. Conclusion
`
`TT’s strategy here was to inundate the Board and TD Ameritrade in a deluge
`
`of inadmissible exhibits in the hopes of drowning out the actual issues. TT should
`
`not be rewarded for such tactics. For the above reasons, TD Ameritrade therefore
`
`asks the Board to exclude the aforementioned exhibits.
`
`Date: June 12, 2015
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
` 1 100 New York Avenue, NW.
`
`Washington, DC. 20005-3934
`(202) 371—2600
`
`egistration No. 61,724
`egistration No. 50,633
`Lori A. Gordo ,
`Robert E. Sokohl, Registration No. 36,013
`Attorneys for Petitioners
`
`-15-
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`CBM2014-00135
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`US. Pat. No. 6,772,132
`
`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
`
`eril<a.arner@finnegan.com
`j oshua.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.
`
`
`
`Jonathan M. Strang
`Registration No. 61
`Attorney for Petitioners
`
`Date: June 12, 2015
`
`1 100 New York Avenue, NW.
`
`Washington, D.C.20005—3934
`(202) 371—2600
`
`200967275DOCX
`
`