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`
`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
` Tuesday, January 20, 2015
`BEFORE:
`SALLY C. MEDLEY
`MEREDITH C. PETRAVICK
`PHILIP J. HOFFMANN
`
`REPORTED BY:
`DANIELLE GRANT
`JOB NO. 13270
`
`TransPerfect Legal Solutions
`212-400-8845 -- depo@transperfect.com
`
`TDA 1016
`CBM2014-00137
`
`

`

`Page 4
` briefly follow up on a question you had
` asked during our initial conference
` call. You asked whether the District
` Court litigation had been stayed, and
` we did not know at the time. We have
` since learned, and now report that
` petitioner moved to stay the District
` Court litigation based on these
` proceedings. But to our knowledge the
` motion has not been ruled on and the
` litigation is still ongoing.
` We do note, however, that the
` defendants in another litigation,
` regarding the 132 and 304 patents, CQG,
` also recently moved to stay that
` litigation based on these proceedings.
` That motion was denied and the Judge
` has since indicated that she's going to
` issue a ruling on the validity of the
` claims under Section 101 by the end of
` February.
` And to your previous request that
` we file mandatory notices about the
` happenings in related litigation, is
`
`Page 5
` this something that you would want us
` to file a mandatory notice about?
` JUDGE MEDLEY: This is a
` third-party that's not involved here --
` MR. GOLDBERG: Right.
` JUDGE MEDLEY: -- that's involved
` in the litigation involving two of the
` involved patents in those cases; is
` that correct?
` MR. GOLDBERG: Yeah.
` JUDGE MEDLEY: Yeah, I think we
` would want to know what the ruling is.
` I don't know that we would use it. I
` think we would want to know if and when
` a ruling comes out. You don't have to
` file it, just let us know and we'll
` have our paralegal get the decision.
` MR. GOLDBERG: Okay, we'll go
` ahead and do that.
` JUDGE MEDLEY: I appreciate the
` update.
` MR. GOLDBERG: As to the matters
` that we wanted to raise on today's
` call, as you may recall the TSE
`
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`Page 2
`
`A P P E A R A N C E S:
`STERNE KESSLER GOLDSTEIN & FOX
`1100 New York Ave. NW Suite 600
`Washington, DC 20005
`
`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
` RICK BEMBEN, ESQ., of Counsel
` rbemben@skgf.com
`
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`
`BY: JOSHUA GOLDBERG, ESQ., of Counsel
` joshua.goldberg@finnegan.com
` CORY BELL, ESQ., of Counsel
` cory.bell@finnegan.com
`
` ERIKA ARNER, ESQ., of Counsel
` erika.arner@finnegan.com
` KEVIN RODKEY, ESQ., of Counsel
` kevin.rodkey@finnegan.com
`
`Page 3
` MR. STRANG: Good afternoon. I'm
` Jon Strang backup counsel for TD
` Ameritrade. With me I have Rob Sokohl
` and Rick Bemben who has not entered in,
` also Lori Gordon who is lead counsel
` across all of the proceedings.
` JUDGE MEDLEY: All right. Then
` for the patent owner.
` MR. GOLDBERG: Joshua Goldberg for
` patent owner, and I think we have Cory
` Bell on the line and Erika Arner, and
` also Kevin Rodkey.
` JUDGE MEDLEY: Okay, great. So
` this conference call is in regard to
` CPN 2014-00131, 133, 135, and 137. We
` understand that the patent owner
` requested this call initially. We'll
` let the patent owner begin, explain
` their situation with regard to
` discovery that they seek from the
` petitioner.
` MR. GOLDBERG: Thank you, your
` Honor.
` As an initial matter, I wanted to
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`Page 6
` reference serves as the basis for all
` the instituted prior art grounds in
` proceedings related to D055 and 056
` patents. The petitioner requested
` rehearing of the board's denial of
` prior art grounds regarding the TSE
` reference and the proceeding related to
` the '304 patents. And I don't think
` that's been ruled on yet.
` The TSE reference is a Japanese
` book, and the translation has been
` disputed in multiple proceedings,
` including District Court litigations.
` Petitioner filed a translation of the
` TSE in each of the proceedings. But
` petitioner did not file an affidavit
` attesting to the accuracy of the
` translation to sufficient to comply
` with Rule 42.63(b). The only affidavit
` filed failed to establish the affiant
` had any personal knowledge or expertise
` on the matter.
` We objected and the petitioner
` served us with five additional
`
`Page 7
` declarations on the matter, one by a
` manager who arranged for the
` translation, I guess, and four
` translators since it's a big document
` and they broke up across different
` translators. We requested that those
` declarants be produced for deposition
` pursuant to rule 42.51(b)(1)(ii) which
` specifies that cross-examination of
` affidavit testimony is authorized.
` This is a routine discovery issue, your
` Honor. The petitioner refused to make
` the declarants available for
` deposition.
` It's our view that the declaration
` should be given no weight, since we
` have no ability to challenge them,
` which basically defeats their purpose.
` With nothing of weight to dispute the
` disputed translations, TSE should be
` struck from the record, and as a result
` patent owner should be entitled to
` summary judgment on all prior grounds.
` For this reason we are currently
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`Page 8
` requesting permission to file motions
` to strike the TSE reference, and for
` immediate summary judgment on all the
` prior grounds, in order to simplify the
` proceedings going forward.
` JUDGE MEDLEY: Thank you. So,
` petitioner, we'll let you speak. I'm
` wondering why no cross?
` MR. STRANG: Your Honor, there's
` several reasons. First a little
` background to correct what's going on.
` We hired TransPerfect, one of the
` leading translation firms in the
` country to translate the TSE reference.
` And in accordance 42.63(b) we submitted
` an affidavit attesting the accuracy of
` the translation, and it's with a very
` similar affidavit there in several
` other cases, including one I'll discuss
` very shortly. That affidavit of
` accuracy is Exhibit 1005 in the 131
` case; 1008 in the 133 case; 1014 in the
` 135 case; and 1009 in the 137 case.
` After institution Trading Technologies
`
`Page 9
` objected to the affidavit only on the
` grounds that Mrs. O'Connell's affidavit
` did not establish sufficient personal
` knowledge. In response we timely
` served supplemental evidence that
` established sufficient personal
` knowledge and that the individual
` translators were qualified.
` In short, she testified that
` TransPerfect's translation process is
` certified by two different standards,
` that they have their own internal
` testing certification process. She
` named the four translators who are
` spread all over the place --
` TransPerfect is a global company --
` some in California, one in Oregon, one
` in the United Kingdom. Trading
` Technologies then demanded to
` cross-examine the translators. We did
` not say that we refused to make them
` available, we said that it's not
` routine discovery under the rule. And,
` in fact, the Board has dealt with this
`
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`
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`
`

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`Page 10
`
` issue twice before.
` On August 14, 2000 in Mexichem
` Amanco Holdings v. Honeywell
` International, the Board held that
` cross-examinations of translators is
` not routine discovery. That's IPR
` 2013-0056, Paper 29, Page 3. And the
` cite of that is in the e-mail chain
` between the parties that we supplied to
` in our e-mail.
` In that case, just like here, the
` certification of accuracy was from a
` manager of a translation company and in
` particular that affidavit was from the
` CEO of Legal Translation.bis, which is
` not nearly as reputable or well-known
` as TransPerfect. The CEO did not name
` the translator or contend that he
` translated the documents himself. On
` the contrary, he testified that the
` translation was made by "a competent
` translator" and "to the best of our
` knowledge and belief is an accurate
` translation". His affidavit that was
`
`Page 11
`
` satisfactory for that Board, in
` substance, even less trustworthy than
` our affidavit of accuracy.
` Now, one time before that the
` Board went the other way, but there
` were some very important extenuating
` circumstances. On January 1, 2014 in
` Apotex v. Wyeth that's IPR 2014-00115
` the Board agreed that the deposition of
` the translator was allowed. But in
` that case the patent owner timely
` objected to the translation and
` quality, pointing out two crucial
` substantive mistranslation that went to
` the merit. The original affidavit was
` defective on its face. It wasn't
` signed by the declarant, it was signed
` by somebody else signing the
` declarant's name. The petitioner had
` submitted a second affidavit and second
` translation after institution with a
` signature that didn't match the first,
` and it purportedly changed the
` translation of some key terms that led
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`Page 12
` right to the arguments of obviousness.
` Specifically, the affidavit that was
` originally submitted in that case,
` which is again IPR 2014-0015, Exhibit
` 1005 was the original affidavit, and
` you can see that the declarant didn't
` sign it herself because it had someone
` else's initials next to the signature.
` On May 16, 2014 a month after the
` institution decision, the petitioner
` provided a new translation and a
` replacement declaration that modified
` the submitted translation. The
` signature is clearly different, you can
` compare them Exhibit 1047, which is the
` e-mail -- excuse me, the second
` declaration. That was served in an
` e-mail that's shown dated May 19th
` which is Exhibit 1085. And in that
` declaration the translator admitted
` that some things had changed, including
` key terms in the reference. For
` example, had retranslated a section
` from excipient to quote, "lyophilized
`
`Page 13
` powder's supporting agent". And that
` made a difference to patentability.
` The situation in that case was
` recounted in the transcript of the
` conference call, and that transcript is
` Exhibit 2154. Wyeth explained at Pages
` 5 and 8 why the translation mattered to
` obviousness in the case, showing the
` Board and the expert relied on
` mistranslated sections. And in
` particular the Board, they pointed out
` that the Chinese reference, the only
` reference at issue, had two
` mistranslations. One going to whether
` or not it was lactose or other key
` ingredients, and another going to what
` were the excipients.
` JUDGE MEDLEY: Let me stop you. I
` don't know that we need to get into
` that other case.
` Is it your position, unless it's
` meritorious unless it was -- they're
` challenging the translation itself then
` maybe we should allow
`
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`
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`Page 14
`
` cross-examination, but just as a
` general routine it shouldn't be
` considered routine discovery, is that
` your position?
` MR. STRANG: Yes, your Honor,
` that's our position. Here where they
` have not identified any specific
` translations that mattered to this
` case, we don't see any reason that we
` should have to go through the expense
` of getting five translators and a
` program manager flown all over the
` place, at least one is out of the
` country, that just doesn't seem in the
` interest of an inexpensive alternative
` to litigation.
` JUDGE MEDLEY: All right. I think
` I understand. I have a few questions.
` First of all to the patent owner,
` you objected to the translation for the
` reasons you stated, that the
` certification wasn't in compliance of
` 42.63(b). They submitted their
` evidence in response to the objection,
`
`Page 15
` and it has been served, but not filled.
` It's not technically part of the case.
` Now, does that overcome the original
` objection. That's my first question.
` MR. GOLDBERG: Yes. It's not
` something considered in great detail,
` but I would be inclined to say, yes, it
` probably should.
` JUDGE MEDLEY: Okay. Then I'm
` wondering if it does, why, if there's
` nothing challenging, if it kind of
` addresses the original concern you had,
` then why do you need to cross-examine
` the translator?
` MR. GOLDBERG: The reason that we
` had objected in the first place is
` because we wanted to know how this was
` translated, and the only way that we
` can figure that out is by deposing the
` translators.
` The reason why that matters is
` because the translation as I mentioned
` before has been heavily disputed over
` the years, and has actually --
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`Page 16
` according to my understanding -- become
` outcome determinative in some previous
` District Court litigation and also in
` an EPO opposition case.
` Now, here the translation on its
` face has internal inconsistencies that
` I imagine were created because they
` were splitting it amongst different
` translators. So, for example, when you
` look at the table of contents of the
` translation, it will say that Section
` 13-2 is, Notice Input Destination. But
` then if you go to Section 13-2 of the
` book, that's actually called, About
` Notification Output Destination.
` JUDGE MEDLEY: You're questioning
` the accuracy of the translation?
` MR. GOLDBERG: Yeah, we would like
` to pursue that now. How the
` translation was done; how it was
` divided between these different
` translators the way it was divided.
` Was there anything funny going on. We
` think we should be able to explore
`
`Page 17
`
` those issues because they could be
` determinative. Now, at the same time
` we don't think that we should have to
` basically prep the attorneys for TD on
` exactly the questions we're going to
` ask. We shouldn't have to tell them
` here's what all the different little
` problems are so that you guys can go
` back and come up with kinds of
` solutions so that when we depose your
` translator they all have these
` pre-written answers to give us. We
` should be able to impeach them as would
` be the case with any other declarant
` bringing in whatever documents that we
` need in order to impeach and see if the
` translations are credible or not.
` JUDGE MEDLEY: Okay. Do you know
` if you're going to propose having your
` own translations done?
` MR. GOLDBERG: We have not
` determined yet whether we're going to
` have a complete translation of our own.
` We may have translations of the
`
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`Page 18
` portions which we think impact the
` matter, which would likely be different
` than the translations that have been
` provided by TD.
` JUDGE MEDLEY: Okay. All right.
` MR. STRANG: Your Honor, can I add
` something? This is petitioner. One
` thing I would like to add is we have
` asked for alternate translations from
` the patent owner, and they've ignored
` our request. We do know that there is
` a previous translation used in
` litigation, and it wasn't of the
` complete document, which is why we
` didn't use it in this proceeding. If
` they're willing to use the one that was
` used in the litigation which they have
` had access to we're fine with that. If
` they want to provide their own
` translation we're more than willing to
` review it and see what any differences
` are, we just don't want to go through
` the expense of all these depositions.
` JUDGE MEDLEY: Okay. Understood.
`
`Page 19
`
` Hold on.
` (Off the record.)
` JUDGE MEDLEY: Okay. Upon
` listening to both sides' argument, we
` have decided that based on the facts of
` these cases that cross-examination is
` warranted.
` So, in other words, we believe
` that the cross-examination of
` O'Connell, Skidmore, Seller and
` Rosenberry is warranted.
` Are there any questions with
` regard to that ruling?
` MR. STRANG: We have one question.
` Who will be responsible for paying for
` the cost of examination.
` JUDGE MEDLEY: Typically the
` person who is the proponent of the
` declaration, right?
` MR. STRANG: And so we're
` responsible. We understand that, your
` Honor.
` JUDGE MEDLEY: I understand
` everybody is across the country,
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`Page 20
` perhaps the patent owner and you can
` get together, maybe telephonically,
` there are ways to reduce cost.
` If there are issue that arise
` during the cross-examination, you can
` reach out to the Board.
` MS. GORDON: Your Honor, this is
` Lori Gordon from petitioner, I do have
` a request. The patent owner has
` referred to documentation and
` information they had regarding
` translations in other proceedings, I
` would like to ask for permission for a
` motion for additional discovery or
` routine discovery to the extent it
` falls under that umbrella of that
` material.
` JUDGE MEDLEY: If they're going to
` use it to cross-examine your witnesses,
` then they have to give it up before the
` cross-examination. I think that's what
` the rules say.
` MR. GOLDBERG: I believe that's
` actually only for depositions of direct
`
`Page 21
` as opposed to cross-examination. I
` understand that we will used it for
` cross-examination we do not need to
` provide the documents beforehand. The
` rules contemplate the serving of
` documents during the deposition.
` JUDGE MEDLEY: Okay. Thank you
` for that clarification. Okay. So,
` Miss Gordon, you still want the -- they
` haven't relied on this information?
` Right? They haven't even filed them in
` the case. Why do you need the
` documents now? I can see if they rely
` on it when they filed the patent owner
` response.
` MS. GORDON: Right. They're
` questioning our translation and they
` are putting us through the expense of
` bringing in our translators from all
` over the world, I think we have a right
` to understand -- and they're doing this
` based on alleged issues that have
` arisen in District Court litigations,
` where they have had translations of
`
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`Page 22
` these documents. I think it's within
` our right to ask for discovery of these
` documents, and the details related to
` what translations they have in their
` possession; what certification they
` received from the district court; what
` omissions they have agreed between
` parties related to the authenticity and
` the translation of these documents, for
` example, have they agreed that -- to
` allow TSE into evidence, and, if so, I
` think we're entitled to see that. So
` we would like permission for a motion
` of discovery on these particular items
` related to the translation of TSE
` that's in their possession from the
` District Court litigation.
` JUDGE MEDLEY: These are not
` documents you can get out of them.
` MS. GORDON: Yes, we don't have
` access to those through our litigation.
` JUDGE MEDLEY: That's because why?
` They're under protective order or
` something?
`
`Page 23
` MS. GORDON: There's two reasons.
` There hasn't been any discovery in our
` District Court litigation and, second,
` there is a protective order that bars
` documents from being shared that are
` marked with a certain designation. So
` we couldn't get certain documents even
` if we had discovery, which we do not.
` MR. GOLDBERG: Can I speak to
` that.
` First of all, I want to point out
` earlier in this proceeding it was
` represented that TSE and other
` documents associated with TSE actually
` came into petitioner's possession
` through their work with some joint
` defense group, which was actually
` involved in one of the earlier
` litigations, where the translation of
` TSE was in dispute.
` Now, beyond that, as Your Honor
` correctly noted earlier, this is not
` anything that we have relied upon yet.
` We have not filed any documents relying
`
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`Page 24
` on these other translations so under
` routine discovery it seems that they
` would have no ability to get these
` documents from us.
` As far as additional discovery
` goes, the period for petitioner to
` pursue additional discovery did not
` even begin until after we had filed our
` patent owner response. And beyond
` that, to authorize them to have
` discovery of what we're going to use to
` depose their witnesses to figure out if
` their witnesses are credible, would
` just defeat the entire purpose of the
` depositions. And to the extent that
` something like that is allowed, it
` would seem that in every single case
` the party would be able to go in, and
` say, Well, you have to give me all the
` documents you're going to use challenge
` my expert before we let you depose
` them. That's basically what they're
` asking for, and we don't see any reason
` that we should need to give them all
`
`Page 25
` the documents that they need to come up
` with their stories as to why the
` translations are good.
` JUDGE MEDLEY: All right. We're
` going to put you on hold.
` (Off the record.)
` JUDGE MEDLEY: We conferred, and
` with respect to the Petitioner's
` request to file for additional
` discovery, we will rule that -- that
` the Petitioner is not authorized to
` file for a motion for additional
` discovery, and we will give reasoning
` for not allowing such a motion in an
` order that will be forthcoming.
` Are there any other issues between
` the parties at this point?
` MR. GOLDBERG: Just a point of
` clarification. Responses are due on
` February 10th, and it sounds like
` Petitioner hasn't yet started reaching
` out to these folks to arrange them for
` depositions. I was wondering if we
`
`TransPerfect Legal Solutions
`212-400-8845 -- depo@transperfect.com
`
`7 (Pages 22 to 25)
`
`

`

`Page 28
` JUDGE MEDLEY: Okay. Appreciate
` your participation today, and we will
` draft up an order and get it out within
` the next day or so. We're adjourned.
` (Concluded at 2:40 p.m.)
`
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`Page 29
`
` CERTIFICATE
` STATE OF NEW YORK )
` )ss:
` COUNTY OF RICHMOND)
` I, DANIELLE GRANT, a Certified
` Shorthand Reporter, and Notary
` Public within and for the State of
` New York, do hereby certify:
` the above statement hereinbefore
` set forth, is a true record of the
` proceedings.
` I further certify that I am not
` related to any of the parties to
` this action by blood or marriage
` and that I am in no way interested
` in the outcome of this matter.
` In witness whereof, I have hereunto
` set my hand this 20th day of
` January, 2015.
`
` __________________________
` DANIELLE GRANT
`
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`Page 26
` certain that they need to do that by,
` so that this proceeding doesn't keep
` trying out further and further and
` further.
` JUDGE MEDLEY: Correct me if I'm
` wrong, if I'm wrong, but I seem to
` recall the rules specified that you
` have to depose -- the deposition has to
` take place so many days prior to when
` it's due.
` MR. GOLDBERG: Yes, the rules do
` specify that depositions should
` ordinarily take place a week before the
` paper is due. So I guess I'll just ask
` for a point of clarification then. If
` the translators are not produced for
` deposition by that date -- a week
` before our papers are due -- are we
` then in a position where the Court will
` authorize us to file our motions to
` exclude the TSE reference and for
` summary judgment on the matter?
` JUDGE MEDLEY: We didn't authorize
` you to file that motion.
`
`Page 27
` MR. GOLDBERG: I'm saying if it
` becomes the case that we're unable to
` depose their witnesses because they
` cannot produce them in a timely
` fashion.
` JUDGE MEDLEY: Call us.
` MS. GORDON: We've always told the
` patent owner that should the Board find
` that this is not routine discovery,
` make efforts to make these people
` available but we're certainly willing
` to negotiate extensions for the
` schedule to make that happen. So I
` guess I oppose any implication by
` patent owner that they're not going to
` be willing to negotiate in good faith,
` extend the schedule to allow us time to
` make use of the deponents available.
` JUDGE MEDLEY: Okay. Is there
` anything else? Any other issues
` between the parties?
` MR. GOLDBERG: Not for the patent
` owner, your Honor.
` MR. STRANG: Not for petitioners.
`
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`TransPerfect Legal Solutions
`212-400-8845 -- depo@transperfect.com
`
`8 (Pages 26 to 29)
`
`

`

`A
`ability 7:18 24:4
`able 16:25 17:14
`24:19
`access 18:19 22:22
`accuracy 6:18 8:17
`8:22 10:13 11:4
`16:18
`accurate 10:24
`action 29:15
`add 18:7,9
`additional 6:25
`20:15 24:6,8
`25:10,13
`addresses 15:13
`adjourned 28:5
`admitted 12:21
`affiant 6:21
`affidavit 6:17,20
`7:11 8:17,19,21
`9:2,3 10:15,25
`11:4,16,21 12:3,6
`afternoon 3:2
`agent 13:2
`agreed 11:10 22:8
`22:11
`ahead 5:20
`alleged 21:23
`allow 13:25 22:12
`27:18
`allowed 11:11
`24:17
`allowing 25:15
`alternate 18:10
`alternative 14:16
`Amanco 10:4
`Ameritrade 1:3,3,4
`3:4
`answers 17:13
`Apotex 11:9
`APPEAL 1:2
`appreciate 5:21
`28:2
`argument 19:5
`arguments 12:2
`arisen 21:24
`Arner 2:18 3:12
`
`arrange 25:23
`arranged 7:3
`art 6:3,7
`asked 4:3,4 18:10
`asking 24:24
`associated 23:15
`attesting 6:18 8:17
`attorneys 17:5
`August 10:3
`authenticity 22:9
`authorize 24:11
`26:21,24
`authorized 7:11
`25:12
`available 7:14 9:23
`27:12,19
`Ave 2:4
`Avenue 2:14
`B
`back 17:10
`background 8:12
`backup 3:3
`bars 23:5
`based 4:9,17 19:6
`21:23
`basically 7:19 17:5
`24:23
`basis 6:2
`belief 10:24
`believe 19:9 20:24
`Bell 2:17 3:12
`Bemben 2:10 3:5
`best 10:23
`beyond 23:22
`24:10
`big 7:5
`blood 29:15
`Board 1:2 9:25
`10:5 11:2,6,10
`13:10,12 20:7
`27:9
`board's 6:6
`book 6:12 16:15
`briefly 4:2
`bringing 17:16
`21:20
`
`broke 7:6
`C
`C 1:19,20 2:2
`California 9:18
`call 1:16 3:15,18
`4:4 5:25 13:6
`27:7
`called 16:15
`case 1:7,9,11,13
`8:23,23,24,24
`10:12 11:12 12:4
`13:4,9,21 14:10
`15:3 16:5 17:15
`21:13 24:18 27:3
`cases 5:9 8:20 19:7
`CBM2014-00131
`1:7
`CBM2014-00133
`1:9
`CBM2014-00135
`1:11
`CBM2014-00137
`1:13
`CEO 10:16,18
`certain 23:7,8 26:2
`certainly 27:12
`CERTIFICATE
`29:2
`certification 9:14
`10:13 14:23 22: