`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`
`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`_____________________
`
`Case CBM2014-00137
`Patent 7,685,055
`_____________________
`
`PETITIONERS’ OBJECTIONS TO PATENT OWNER’S
`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`TDA 1032
`CBM2014-00137
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`Petitioners TD Ameritrade Holding Corp., TD Ameritrade, Inc., and TD
`
`Ameritrade Online Holdings Corp. (“Petitioners”) object to the admissibility of the
`
`following evidence Trading Technologies International, Inc. (“Patent Owner”)
`
`submitted with its Patent Owner’s Response. 37 C.F.R. § 42.64. Petitioners ask the
`
`Patent Trial and Appeal Board to deny the admission and consideration of the
`
`following documents on the following bases:
`
`
`
`Trading Tech Exhibit 2202 - Patent Eligible Subject Matter presentation
`
`Petitioners object to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402, or as confusing or a waste of time under FRE 403,
`
`because cited portions are not relevant to any issue remaining in this proceeding,
`
`such as patentability of the subject matter, written description of the invention,
`
`broadest reasonable interpretation of the claims, indefiniteness of the claims,
`
`anticipation of the claims by the prior art, or obviousness of the claims in view of
`
`the prior art.
`
`To the extent Patent Owner relies on the contents of this document for the
`
`truth of the matter asserted, Petitioners object to such contents as inadmissible
`
`hearsay under FRE 801 and 802 that does not fall under any exceptions, including
`
`those of FRE 803, 804, 805 or 807.
`
`
`
`- 2 -
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`Petitioners object to this document as not properly authenticated under FRE
`
`901 because Patent Owner has not presented any evidence that the document is
`
`authentic nor that the document is self-authenticating under FRE 902.
`
`Petitioners object to the document for lack of foundation. Patent Owner has
`
`not shown that the declarant has personal knowledge of the subject matter of the
`
`testimony as required by FRE 602.
`
`To the extent Patent Owner relies on the contents of this document to prove
`
`the content of the original document, Petitioners object to this document as not
`
`being an original document under FRE 1002, an authentic duplicate under FRE
`
`1003, nor a document that falls under any exceptions to the original-document
`
`requirement, including those of FRE 1004.
`
`Petitioners object to this document under FRE 1006 as an improper
`
`summary because Patent Owner has not shown that the contents of the original
`
`cannot be conveniently examined in court nor made the original or duplicates
`
`available for examination or copying.
`
`Petitioners object to the document as an improper demonstrative. Patent
`
`Owner has not established a proper foundation for the evidence set forth in the
`
`document.
`
`
`
`- 3 -
`
`
`
`
`Trading Tech Exhibit 2203 - Untitled Video
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`Petitioners object to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402, or as confusing or a waste of time under FRE 403,
`
`because cited portions are not relevant to any issue remaining in this proceeding,
`
`such as patentability of the subject matter, written description of the invention,
`
`broadest reasonable interpretation of the claims, indefiniteness of the claims,
`
`anticipation of the claims by the prior art, or obviousness of the claims in view of
`
`the prior art.
`
`To the extent Patent Owner relies on the contents of this document for the
`
`truth of the matter asserted, Petitioners object to such contents as inadmissible
`
`hearsay under FRE 801 and 802 that does not fall under any exceptions, including
`
`those of FRE 803, 804, 805 or 807.
`
`Petitioners object to this document as not properly authenticated under FRE
`
`901 because Patent Owner has not presented any evidence that the document is
`
`authentic nor that the document is self-authenticating under FRE 902.
`
`To the extent Patent Owner relies on the contents of this document to prove
`
`the content of the original document, Petitioners object to this document as not
`
`being an original document under FRE 1002, an authentic duplicate under FRE
`
`1003, nor a document that falls under any exceptions to the original-document
`
`requirement, including those of FRE 1004.
`
`
`
`- 4 -
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`Petitioners object to this document under FRE 1006 as an improper
`
`summary because Patent Owner has not shown that the contents of the original
`
`cannot be conveniently examined in court nor made the original or duplicates
`
`available for examination or copying.
`
`Petitioners object to the document to the extent it offers opinion under FRE
`
`701 - 703. The declarant is not qualified to offer expert testimony, the testimony is
`
`not based on sufficient facts or data, and there is no indication that declarant has
`
`the expertise necessary to apply the law to the facts as would be necessary to opine
`
`under FRE 702. Further, there is no indication that the declarant based those
`
`opinions on facts or data upon which an expert in the relevant field would
`
`reasonably rely. FRE 703. Further, testimony at these paragraphs falls outside
`
`acceptable lay opinion testimony under FRE 701. A party may not evade the
`
`expert witness requirements of FRE 702 by simply designating the testimony as
`
`lay testimony under FRE 701.
`
`Petitioners object to the document for lack of foundation. Patent Owner has
`
`not shown that the declarant has personal knowledge of the subject matter of the
`
`testimony as required by FRE 602.
`
`Petitioners object to the document as an improper demonstrative. Patent
`
`Owner has not established a proper foundation for the evidence set forth in the
`
`document.
`
`
`
`- 5 -
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`Petitioners object to the document as citing exhibits not served with the
`
`document as required by 37 C.F.R. § 42.51(b)(1)(i).
`
`Trading Tech Exhibit 2204 - Bloomberg Execution Management System
`
`presentation
`
`Petitioners object to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402, or as confusing or a waste of time under FRE 403,
`
`because cited portions are not relevant to any issue remaining in this proceeding,
`
`such as patentability of the subject matter, written description of the invention,
`
`broadest reasonable interpretation of the claims, indefiniteness of the claims,
`
`anticipation of the claims by the prior art, or obviousness of the claims in view of
`
`the prior art.
`
`To the extent Patent Owner relies on the contents of this document for the
`
`truth of the matter asserted, Petitioners object to such contents as inadmissible
`
`hearsay under FRE 801 and 802 that does not fall under any exceptions, including
`
`those of FRE 803, 804, 805 or 807.
`
`Petitioners object to this document as not properly authenticated under FRE
`
`901 because Patent Owner has not presented any evidence that the document is
`
`authentic nor that the document is self-authenticating under FRE 902.
`
`To the extent Patent Owner relies on the contents of this document to prove
`
`the content of the original document (e.g., the underlying product or software),
`
`
`
`- 6 -
`
`
`
`
`Petitioners object to this document as not being an original document under FRE
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`1002, an authentic duplicate under FRE 1003, nor a document that falls under any
`
`exceptions to the original-document requirement, including those of FRE 1004.
`
`Petitioners object to this document under FRE 1006 as an improper
`
`summary because Patent Owner has not shown that the contents of the original
`
`cannot be conveniently examined in court nor made the original or duplicates
`
`available for examination or copying.
`
`Petitioners object to the document to the extent it offers opinion under FRE
`
`701 - 703. The declarant (i.e., whoever is the author) is not qualified to offer expert
`
`testimony, the testimony is not based on sufficient facts or data, and there is no
`
`indication that declarant has the expertise necessary to apply the law to the facts as
`
`would be necessary to opine under FRE 702. Further, there is no indication that the
`
`declarant based those opinions on facts or data upon which an expert in the
`
`relevant field would reasonably rely. FRE 703. Further, testimony at these
`
`paragraphs falls outside acceptable lay opinion testimony under FRE 701. A party
`
`may not evade the expert witness requirements of FRE 702 by simply designating
`
`the testimony as lay testimony under FRE 701.
`
`Petitioners object to the document for lack of foundation. Patent Owner has
`
`not shown that the declarant has personal knowledge of the subject matter of the
`
`testimony as required by FRE 602.
`
`
`
`- 7 -
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`Petitioners object to the document as an improper demonstrative. Patent
`
`Owner has not established a proper foundation for the evidence set forth in the
`
`document.
`
`Petitioners object to the document as citing exhibits not served with the
`
`document as required by 37 C.F.R. § 42.51(b)(1)(i).
`
`Trading Tech Exhibit 2205 - Reuter’s Order Routing for Equities
`
`Petitioners object to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402, or as confusing or a waste of time under FRE 403,
`
`because cited portions are not relevant to any issue remaining in this proceeding,
`
`such as patentability of the subject matter, written description of the invention,
`
`broadest reasonable interpretation of the claims, indefiniteness of the claims,
`
`anticipation of the claims by the prior art, or obviousness of the claims in view of
`
`the prior art.
`
`To the extent Patent Owner relies on the contents of this document for the
`
`truth of the matter asserted, Petitioners object to such contents as inadmissible
`
`hearsay under FRE 801 and 802 that does not fall under any exceptions, including
`
`those of FRE 803, 804, 805 or 807.
`
`Petitioners object to this document as not properly authenticated under FRE
`
`901 because Patent Owner has not presented any evidence that the document is
`
`authentic nor that the document is self-authenticating under FRE 902.
`
`
`
`- 8 -
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`To the extent Patent Owner relies on the contents of this document to prove
`
`the content of the original document (e.g., the underlying product or software),
`
`Petitioners object to this document as not being an original document under FRE
`
`1002, an authentic duplicate under FRE 1003, nor a document that falls under any
`
`exceptions to the original-document requirement, including those of FRE 1004.
`
`Petitioners object to this document under FRE 1006 as an improper
`
`summary because Patent Owner has not shown that the contents of the original
`
`cannot be conveniently examined in court nor made the original or duplicates
`
`available for examination or copying.
`
`Petitioners object to the document to the extent it offers opinion under FRE
`
`701 - 703. The declarant (i.e., whoever is the author) is not qualified to offer expert
`
`testimony, the testimony is not based on sufficient facts or data, and there is no
`
`indication that declarant has the expertise necessary to apply the law to the facts as
`
`would be necessary to opine under FRE 702. Further, there is no indication that the
`
`declarant based those opinions on facts or data upon which an expert in the
`
`relevant field would reasonably rely. FRE 703. Further, testimony at these
`
`paragraphs falls outside acceptable lay opinion testimony under FRE 701. A party
`
`may not evade the expert witness requirements of FRE 702 by simply designating
`
`the testimony as lay testimony under FRE 701.
`
`
`
`- 9 -
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`Petitioners object to the document for lack of foundation. Patent Owner has
`
`not shown that the declarant has personal knowledge of the subject matter of the
`
`testimony as required by FRE 602.
`
`Petitioners object to the document as an improper demonstrative. Patent
`
`Owner has not established a proper foundation for the evidence set forth in the
`
`document.
`
`Petitioners object to the document as citing exhibits not served with the
`
`document as required by 37 C.F.R. § 42.51(b)(1)(i).
`
`Trading Tech Exhibit 2206 - User Companion for thinkorswim
`
`Petitioners object to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402, or as confusing or a waste of time under FRE 403,
`
`because cited portions are not relevant to any issue remaining in this proceeding,
`
`such as patentability of the subject matter, written description of the invention,
`
`broadest reasonable interpretation of the claims, indefiniteness of the claims,
`
`anticipation of the claims by the prior art, or obviousness of the claims in view of
`
`the prior art.
`
`To the extent Patent Owner relies on the contents of this document for the
`
`truth of the matter asserted, Petitioners object to such contents as inadmissible
`
`hearsay under FRE 801 and 802 that does not fall under any exceptions, including
`
`those of FRE 803, 804, 805 or 807.
`
`
`
`- 10 -
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`To the extent Patent Owner relies on the contents of this document to prove
`
`the content of the original document (e.g., the underlying product or software),
`
`Petitioners object to this document as not being an original document under FRE
`
`1002, an authentic duplicate under FRE 1003, nor a document that falls under any
`
`exceptions to the original-document requirement, including those of FRE 1004.
`
`Petitioners object to this document under FRE 1006 as an improper
`
`summary because Patent Owner has not shown that the contents of the original
`
`cannot be conveniently examined in court nor made the original or duplicates
`
`available for examination or copying.
`
`Petitioners object to the document to the extent it offers opinion under FRE
`
`701 - 703. The declarant (i.e., whoever is the author) has not been shown to be
`
`qualified to offer expert testimony, it has not been shown that the testimony is not
`
`based on sufficient facts or data, and there is no indication that declarant has the
`
`expertise necessary to apply the law to the facts as would be necessary to opine
`
`under FRE 702. Further, there is no indication that the declarant based those
`
`opinions on facts or data upon which an expert in the relevant field would
`
`reasonably rely. FRE 703. Further, testimony at these paragraphs falls outside
`
`acceptable lay opinion testimony under FRE 701. A party may not evade the
`
`expert witness requirements of FRE 702 by simply designating the testimony as
`
`lay testimony under FRE 701.
`
`
`
`- 11 -
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`Petitioners object to the document for lack of foundation. Patent Owner has
`
`not shown that the declarant has personal knowledge of the subject matter of the
`
`testimony as required by FRE 602.
`
`Petitioners object to the document as an improper demonstrative. Patent
`
`Owner has not established a proper foundation for the evidence set forth in the
`
`document.
`
`Petitioners object to the document as citing exhibits not served with the
`
`document as required by 37 C.F.R. § 42.51(b)(1)(i).
`
`
`
`Trading Tech Exhibit 2207 - CQG document
`
`Petitioners object to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402, or as confusing or a waste of time under FRE 403,
`
`because cited portions are not relevant to any issue remaining in this proceeding,
`
`such as patentability of the subject matter, written description of the invention,
`
`broadest reasonable interpretation of the claims, indefiniteness of the claims,
`
`anticipation of the claims by the prior art, or obviousness of the claims in view of
`
`the prior art.
`
`To the extent Patent Owner relies on the contents of this document for the
`
`truth of the matter asserted, Petitioners object to such contents as inadmissible
`
`
`
`- 12 -
`
`
`
`
`hearsay under FRE 801 and 802 that does not fall under any exceptions, including
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`those of FRE 803, 804, 805 or 807.
`
`Petitioners object to this document as not properly authenticated under FRE
`
`901 because Patent Owner has not presented any evidence that the document is
`
`authentic nor that the document is self-authenticating under FRE 902.
`
`To the extent Patent Owner relies on the contents of this document to prove
`
`the content of the original document (e.g., the underlying product or software),
`
`Petitioners object to this document as not being an original document under FRE
`
`1002, an authentic duplicate under FRE 1003, nor a document that falls under any
`
`exceptions to the original-document requirement, including those of FRE 1004.
`
`Petitioners object to this document under FRE 1006 as an improper
`
`summary because Patent Owner has not shown that the contents of the original
`
`cannot be conveniently examined in court nor made the original or duplicates
`
`available for examination or copying.
`
`Petitioners object to the document to the extent it offers opinion under FRE
`
`701 - 703. The declarant (i.e., whoever is the author) is not qualified to offer expert
`
`testimony, the testimony is not based on sufficient facts or data, and there is no
`
`indication that declarant has the expertise necessary to apply the law to the facts as
`
`would be necessary to opine under FRE 702. Further, there is no indication that the
`
`declarant based those opinions on facts or data upon which an expert in the
`
`
`
`- 13 -
`
`
`
`
`relevant field would reasonably rely. FRE 703. Further, testimony at these
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`paragraphs falls outside acceptable lay opinion testimony under FRE 701. A party
`
`may not evade the expert witness requirements of FRE 702 by simply designating
`
`the testimony as lay testimony under FRE 701.
`
`Petitioners object to the document for lack of foundation. Patent Owner has
`
`not shown that the declarant has personal knowledge of the subject matter of the
`
`testimony as required by FRE 602.
`
`Petitioners object to the document as an improper demonstrative. Patent
`
`Owner has not established a proper foundation for the evidence set forth in the
`
`document.
`
`Petitioners object to the document as citing exhibits not served with the
`
`document as required by 37 C.F.R. § 42.51(b)(1)(i).
`
`Trading Tech Exhibit 2208 - ORC Trader document
`
`Petitioners object to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402, or as confusing or a waste of time under FRE 403,
`
`because cited portions are not relevant to any issue remaining in this proceeding,
`
`such as patentability of the subject matter, written description of the invention,
`
`broadest reasonable interpretation of the claims, indefiniteness of the claims,
`
`anticipation of the claims by the prior art, or obviousness of the claims in view of
`
`the prior art.
`
`
`
`- 14 -
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`To the extent Patent Owner relies on the contents of this document for the
`
`truth of the matter asserted, Petitioners object to such contents as inadmissible
`
`hearsay under FRE 801 and 802 that does not fall under any exceptions, including
`
`those of FRE 803, 804, 805 or 807.
`
`Petitioners object to this document as not properly authenticated under FRE
`
`901 because Patent Owner has not presented any evidence that the document is
`
`authentic nor that the document is self-authenticating under FRE 902.
`
`To the extent Patent Owner relies on the contents of this document to prove
`
`the content of the original document (e.g., the underlying product or software),
`
`Petitioners object to this document as not being an original document under FRE
`
`1002, an authentic duplicate under FRE 1003, nor a document that falls under any
`
`exceptions to the original-document requirement, including those of FRE 1004.
`
`Petitioners object to this document under FRE 1006 as an improper
`
`summary because Patent Owner has not shown that the contents of the original
`
`cannot be conveniently examined in court nor made the original or duplicates
`
`available for examination or copying.
`
`Petitioners object to the document to the extent it offers opinion under FRE
`
`701 - 703. The declarant (i.e., whoever is the author) is not qualified to offer expert
`
`testimony, the testimony is not based on sufficient facts or data, and there is no
`
`indication that declarant has the expertise necessary to apply the law to the facts as
`
`
`
`- 15 -
`
`
`
`
`would be necessary to opine under FRE 702. Further, there is no indication that the
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`declarant based those opinions on facts or data upon which an expert in the
`
`relevant field would reasonably rely. FRE 703. Further, testimony at these
`
`paragraphs falls outside acceptable lay opinion testimony under FRE 701. A party
`
`may not evade the expert witness requirements of FRE 702 by simply designating
`
`the testimony as lay testimony under FRE 701.
`
`Petitioners object to the document for lack of foundation. Patent Owner has
`
`not shown that the declarant has personal knowledge of the subject matter of the
`
`testimony as required by FRE 602.
`
`Petitioners object to the document as an improper demonstrative. Patent
`
`Owner has not established a proper foundation for the evidence set forth in the
`
`document.
`
`Petitioners object to the document as citing exhibits not served with the
`
`document as required by 37 C.F.R. § 42.51(b)(1)(i).
`
`
`
`
`
`- 16 -
`
`
`
`
`
`TD Ameritrade’s Objections to TTI’s Evidence
`CBM2014-00137
`
`These objections are made within five business days from the March 6,
`
`2015, Patent Owner’s Response.
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`
`
`/Jonathan M. Strang/
`
`Lori A. Gordon, Registration No. 50,633
`Robert E. Sokohl, Registration No. 36,013
`Jonathan M. Strang, Registration No. 61,724
`
`Attorneys for Petitioners
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
`
`1977612_1.DOCX
`
`
`
`
`
`
`
`
`
`- 17 -
`
`
`
`CERTIFICATION OF SERVICE
`
`
`
`The undersigned hereby certifies that on March 13, 2015, the attached
`
`“Petitioners’ Objections to Patent Owner’s Evidence Pursuant to 37 C.F.R.
`
`§ 42.64(b)(1)” were served electronically via e-mail upon the following counsel for
`
`Patent Owner, Trading Technologies International, Inc.:
`
`Erika H. Arner (Lead Counsel)
`Joshua L. Goldberg (Back-up Counsel)
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`
`erika.arner@finnegan.com
`joshua.goldberg@finnegan.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/
`
`
`
` Jonathan M. Strang
`Date: March 13, 2015
` Lead Attorney for Petitioners
`
`
`
`
`
`1100 New York Avenue, N.W. Registration No. 50,633
`Washington, D.C.20005-3934
`(202) 371-2600
`
`
`
`
`
`
`
`
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