Paper No. ______
`Filed: June 23, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.
`Petitioners
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
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`Case CBM2014-00137
`Patent 7,685,055
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`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
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`Filed: June 23, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.
`Petitioners
`
`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
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`
`
`
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`
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`Case CBM2014-00137
`Patent 7,685,055
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`Patent Owner’s Opposition to Petitioner’s Motion to Exclude
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`Case No. CBM2014-00137
`Patent 7,685,055
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`
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`I.
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`II.
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`TABLE OF CONTENTS
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`Preliminary Statement .................................................................................. 1
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`Standard ......................................................................................................... 1
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`III. Exhibit 2007, a Set of Demonstrative Exhibits, was Properly Cited
`in TT’s Preliminary Response and is not Hearsay ..................................... 2
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`IV. Exhibit 2202, a District Court Demonstrative, Was Not Offered
`for the Truth of the Matter Asserted ........................................................... 3
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`V.
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`The Thomas Report (Ex. 2010) was Properly Cited in TT’s
`Preliminary Response and is not Hearsay; Ex. 2201 was Not Filed
`in This Proceeding ......................................................................................... 5
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`VI. The HCI Printouts (Exs. 2011-2019) Are Admissible ................................ 7
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`A.
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`The HCI Printouts are Exceptions to the Hearsay Prohibition or
`are Not Hearsay at All ........................................................................... 7
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`B.
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`The HCI Printouts Are Properly Authenticated .................................... 9
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`VII. TT’s Video Animation (Ex. 2203) Is Demonstrative, Not Offered
`for the Truth of the Matter Asserted ......................................................... 10
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`VIII. Conclusion .................................................................................................... 11
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`
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`i
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`Case No. CBM2014-00137
`Patent 7,685,055
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`I.
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`Preliminary Statement
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`In its motion to exclude, Petitioners TD Ameritrade et al. (“TD”) repeatedly
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`ask the Board to ignore the nature of the evidence submitted by Trading
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`Technologies (“TT”), as well as the timing and circumstances of the evidence’s
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`submission.
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`TD criticizes TT’s reliance on exhibits, not declarations, to support the
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`Patent Owner’s Preliminary Response (“POPR”)—when, by rule, no declarations
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`can be submitted at that phase of the proceeding. TD criticizes as hearsay exhibits
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`not submitted for the truth of the matter asserted, twisting the exhibits’ use to
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`further TD’s exclusionary goals. TD also argues that government websites and
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`published articles are somehow inauthentic or unreliable.
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`As these examples demonstrate, are motivated not by a fair reading of the
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`rules of evidence, but rather on a litigation-driven desire to exclude relevant,
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`probative evidence. Accordingly, TT respectfully requests denial of TD’s motion.
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`II.
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`Standard
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`The Federal Rules of Evidence (“FRE”) govern the admissibility of evidence
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`in this proceeding. Trial Practice Guide, 77 Fed. Reg. 48,756, 48,758 (Aug. 14,
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`2012). As the party moving to exclude evidence, TD bears the burden of proof on
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`inadmissibility. 37 C.F.R. § 42.20(c).
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`
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`1
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`
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`Case No. CBM2014-00137
`Patent 7,685,055
`III. Exhibit 2007, a Set of Demonstrative Exhibits, was Properly Cited in
`TT’s Preliminary Response and is not Hearsay
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`TD criticizes TT for citing Exhibit 2007, a set of demonstrative slides
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`submitted to a court in parallel litigation, in its Patent Owner’s Preliminary
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`Response. TT cited this exhibit as general background regarding TT’s formation,
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`company size, and success of its MD Trader product. Other than one mention of
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`commercial success, TT did not repeat this reliance in its Patent Owner’s Response
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`(“POR”). TT’s reliance on these demonstratives was proper under the Rules.
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`Under Rule 42.207(c) and the Board’s Trial Practice Guide (“TPG”), a
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`Patent Owner cannot submit new supporting declarations with its Preliminary
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`Response and must rely on evidence from other proceedings. 37 C.F.R. § 42.207(c)
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`(“The preliminary response shall not present new testimony evidence beyond that
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`already of record . . . .”); TPG at 48,764 (“The preliminary response may present
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`evidence other than new testimonial evidence to demonstrate that no review should
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`be instituted.”) (emphasis added). TD’s criticism of TT’s citation of Exhibit 2007,
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`not repeated in the Patent Owner’s Response, is misplaced.
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`Exhibit 2007 is demonstrative in nature and illustrates exemplary differences
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`between TT’s technology and the prior art. To narrow the issues before the Board,
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`TT agrees to rely on Exhibit 2007 as a demonstrative only, not to establish the
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`truth of the matters for which it is cited on pages 1 and 29 of the POPR. As such,
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`2
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`Case No. CBM2014-00137
`Patent 7,685,055
`TD’s hearsay objections are unfounded. TD’s objections under FRE 602, 702, and
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`703 fail for the same reason.
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`TD’s reliance on the best evidence rule (FRE 1002 et seq.) against Ex. 2007
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`is similarly misplaced. First, TT has not offered Ex. 2007 “in order to prove its
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`content” or as a “summary . . . of voluminous writings.” FRE 1002; FRE 1006. TT
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`never alleged any passage or figure of these exhibits served as a “summary” of a
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`prior litigation. Nor has TD pointed to any discrepancy between Ex. 2007 and any
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`underlying document. The “contents” of Ex. 2007 are therefore not at issue, and
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`these rules are inapplicable. Second, TD’s arguments go to the sufficiency of the
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`evidence, not its admissibility. TD’s motion questions whether the passages of Ex.
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`2007 are “proper summaries” of the root proceedings. Motion at 5. This argument
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`is improper in a motion to exclude. See TPG at 48,767 (“A motion to exclude . . .
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`may not be used to challenge the sufficiency of the evidence to prove a particular
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`fact.”).
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`IV. Exhibit 2202, a District Court Demonstrative, Was Not Offered for the
`Truth of the Matter Asserted
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`TD similarly asks the Board to exclude another demonstrative exhibit,
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`Ex. 2202, on the basis of hearsay, lacking personal knowledge, and the rules
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`governing expert testimony. Motion at 1-5. Due to the demonstrative nature of the
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`exhibit, as well as its intended use, TD’s arguments fail.
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`3
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`Case No. CBM2014-00137
`Patent 7,685,055
`TT relied on Ex. 2202 to show how purported experts of TD’s co-defendants
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`had characterized the field of the ’055 patent as technological. POR at 22. But
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`contrary to TD’s insistence, Ex. 2202 was not offered to establish the truth of these
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`characterizations. Id.
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`Because TT did not present this exhibit to establish the truth of the matters
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`asserted, it is not hearsay under FRE 801(c)(2). Anderson v. U.S., 417 U.S. 211,
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`219-220 (1974); Abrams v. Dep’t of Public Safety, 764 F.3d 244, 252 (2d Cir.
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`2014). And because TT offered these exhibits to show what prior tribunals
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`considered, the personal knowledge (FRE 602) and opinion testimony
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`requirements (FRE 701, 702) are immaterial. Such evidence is not witness
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`testimony. Finally, TD’s attacks along the lines of the best evidence rule fail for
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`the same reasons above. Namely, the content of the exhibit is not at issue, so these
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`rules do not apply. FRE 1002, 1006.
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`Finally, TD asserts that Exhibit 2202 is somehow irrelevant (FRE 401) or a
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`waste of time (FRE 403). Not so. The exhibit contains materials considered in
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`litigation as to the nature of the patent in dispute here. This material provides
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`factual background helpful for patent eligibility and nonobvious assessments.
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`4
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`Case No. CBM2014-00137
`Patent 7,685,055
`V. The Thomas Report (Ex. 2010) was Properly Cited in TT’s Preliminary
`Response and is not Hearsay; Ex. 2201 was Not Filed in This Proceeding
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`TD next challenges Exhibit 2010, an expert report from Mr. Thomas in a
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`parallel litigation. Motion at 5-8. TD attacks Ex. 2010 on four grounds, each of
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`which is improper.
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`First, TD accuses TT of relying on Ex. 2010 as hearsay in its Preliminary
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`Response. Id. at 6. This criticism is misplaced for the same reasons explained
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`above. Specifically, a Patent Owner cannot submit new testimonial evidence with
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`its Preliminary Response and therefore must rely on evidence from other
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`proceedings. 37 C.F.R. § 42.207(c); TPG at 48,764. Here, TT cited Ex. 2010 to
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`establish industry praise for its MD Trader product, POPR at 29, and explain one
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`of the benefits of the product over existing systems. Id. at 42. Other than one
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`mention of industry praise, TT supported similar statements in its Patent Owner’s
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`Response with additional evidence. See, e.g., POR at 4. Accordingly, TD’s claims
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`are unfounded.
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`Second, TD takes issue with paragraphs 31, 33, and 34 of Ex. 2010 as
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`allegedly acting as “conduit[s] for the expunged Brumfield testimony.” Motion
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`at 7. But TD’s attacks are again baseless. TT could not submit new testimonial
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`evidence in its Preliminary Response as a matter of rule. And TT never relied on
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`any of these paragraphs in its Patent Owner’s Response. TD’s accusations
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`therefore do not survive scrutiny.
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`5
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`Case No. CBM2014-00137
`Patent 7,685,055
`Third, TD challenges paragraphs 32-34 of Ex. 2010 as hearsay. Motion at 8.
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`Given that Exhibit 2010 is an expert report prepared for use in a Federal District
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`Court, reliance on facts and data beyond the expert’s personal knowledge, even if
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`otherwise inadmissible, is proper under FRE 703. HTI Holdings, Inc. v. Hartford
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`Cas. Ins. Co., No. 10-cv-06021, 2011 WL 4595799, at *3 (D. Ore. Aug. 24, 2011)
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`(“hearsay is admissible as a type of fact or data reasonably relied upon by an
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`expert”). Further, TT cited Ex. 2010 only once in its Patent Owner’s Response—
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`relying on paragraph 32 for showing industry praise for the MD Trader tool. POR
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`at 4. Similar to the arguments above, TD claims that Mr. Thomas has “acted as a
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`conduit for hearsay statements” from traders who signed declarations—under the
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`penalty of perjury—describing the importance of the patented invention to
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`electronic trading. Ex. 2010, ¶ 33. TD’s allegations fail to account for the context
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`as a whole. Mr. Thomas considered these statements in forming his opinion
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`regarding public perception of the claimed system. CBM2014-00135, Ex. 1030 at
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`55:7-18. Mr. Thomas was ready and willing to answer questions regarding how
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`these declarations, as well as his conversation with one of the declarants, factored
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`into the preparation of his declaration. Id. at 52:17-55:18. TD opted not to pursue
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`this discovery. Because the declarations relied upon by Mr. Thomas are proper
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`bases for an expert opinion under FRE 703, paragraphs 32-34 and the declarations
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`should not be excluded. Further, the declarations demonstrate the mental
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`6
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`Case No. CBM2014-00137
`Patent 7,685,055
`impressions of those in the industry falling within FRE 803(3)’s established
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`exception to the hearsay rule.
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`Finally, TD asserts that Ex. 2010 is somehow irrelevant or a waste of time.
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`Motion at 8. But the exhibit contains materials considered in litigation as to the
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`nature of the patent in dispute here—information that may help the Board as
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`factual background or inform its patent eligibility or nonobviousness assessments.
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`TD attacks Ex. 2201 on the same grounds as Ex. 2010. Motion at 5-8. Ex.
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`2201 was not filed in this proceeding; therefore, there is nothing to exclude.
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`VI. The HCI Printouts (Exs. 2011-2019) Are Admissible
`TD requests exclusion of the HCI printouts (Exs. 2011-2019) for purportedly
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`being hearsay and lacking authentication. Motion at 9. Neither assertion is correct.
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`A. The HCI Printouts are Exceptions to the Hearsay Prohibition or
`are Not Hearsay at All
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`TT does not rely on Exhibits 2011-2019 for the truth of the matter asserted,
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`as TD suggests. These exhibits do not state that TT’s GUI “is technological and
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`solves a technical problem.” Motion at 9. Rather, TT provides these exhibits to
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`corroborate that GUIs are technology. See POR at 22. Exhibits 2011-2019
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`corroborate this fact regardless of whether TT’s GUIs are “technological and
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`solve[] a technical problem.” Motion at 9. Accordingly, these exhibits are not
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`hearsay.
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`7
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`Case No. CBM2014-00137
`Patent 7,685,055
`Even if TT did need to prove the truth of the matter in these exhibits, they
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`fall within hearsay exceptions. Exhibits 2011 and 2012 are separately admissible
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`because they represent statements from a public office setting out the office’s
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`activities. FRE 803(8)(A)(i). NASA, a federal agency, is a public office. And its
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`statements on the division of its technical areas and their “research activities” set
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`out its “activities.” Id.
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`Exhibits 2013-2019 are also admissible under FRE 807. These printouts
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`from websites maintained by colleges and universities reflect the courses offered at
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`those educational institutions. There would be no reason for these institutions to
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`misrepresent the courses they offer or their descriptions thereof. Each website
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`remains available to the public at the addresses provided. See infra. Thus, these
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`statements have circumstantial guarantees of trustworthiness. FRE 807(a)(1).
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`The exhibits also evidence a material fact and are highly probative,
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`FRE 807(a)(2)-(3), demonstrating that third party institutions consistently classify
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`subject matter relevant to this proceeding as technological. Finally, admitting these
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`exhibits best serves the interest of justice. FRE 807(a)(4). The websites are
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`accurate. It would have been cost prohibitive (and pedantic) for both TT and TD to
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`depose an agent from each and every one of these schools for the sole purpose of
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`confirming their course offerings match their online listings. To request this
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`stresses form to the literal exclusion of substance.
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`
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`8
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`Case No. CBM2014-00137
`Patent 7,685,055
`TT also notes that its Preliminary Response serves as proper notice on the
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`intent to use these exhibits. FRE 807(b). And each of the exhibits lists names and
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`addresses of the institutions, or such information is readily available. Id.
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`The HCI Printouts Are Properly Authenticated
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`B.
`TD’s argument that Exhibits 2011-2019 are somehow inauthentic should
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`also be dismissed. Exhibits 2013-2019 include direct links to their sources at the
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`top of each page. See Exs. 2013-2019. All of these sources remain available to this
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`day and are accessible by either typing in a URL or querying public search
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`engines. TD can immediately confirm their content. TD cannot genuinely question
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`that these documents are what they purport to be. Moreover, these exhibits also
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`include additional indicia of authenticity such as school or government logos,
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`familiar colors and formats, dates, addresses, contact information, etc., sufficient to
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`determine their authenticity. FRE 901(b)(4); see also QSC Audio Prods. v. Crest
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`Audio, IPR2014-00127, Paper 43 at 11-12.
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`Exhibits. 2011 and 2012 are self-authenticating. “[P]ublication[s] purporting
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`to be issued by a public authority” “require no extrinsic evidence of authenticity.”
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`FRE 902(5). Exhibits 2011 and 2012 are websites published by NASA, a federal
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`agency (i.e., a public authority). Documents on government websites are thus self-
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`authenticating. See, e.g., Hispanic Broad. Corp. v. Educ. Media Found., 2003 WL
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`22867633, at *5, n.5 (C.D. Cal. Oct. 30, 2003); Langbord v. U.S. Dept. of
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`9
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`Case No. CBM2014-00137
`Patent 7,685,055
`Treasury, 2011 WL 2623315, at *14 (E.D. Pa. July 5, 2011) (finding printouts of
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`National Archives website are “prima facie authentic under FRE 902(5), which
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`provides that ‘publications purporting to be issued by public authority’ are self-
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`authenticating”). These documents also include indicia of authenticity—such as
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`NASA logos, the familiar website layout, proper names of research groups and
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`related officials, etc.—confirming they are genuine. FRE 901(b)(4); see also QSC
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`Audio, Paper 43 at 11-12. These documents remain available to this day. Any
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`disagreement regarding the authenticity of these documents should thus go to their
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`weight, not their admissibility.
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`VII. TT’s Video Animation (Ex. 2203) Is Demonstrative, Not Offered for the
`Truth of the Matter Asserted
`
`TD asks the Board to exclude TT’s video animation (Ex. 2203) as hearsay,
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`lacking personal knowledge, improper opinion testimony, lacking authenticity, and
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`an improper summary. Motion at 10-12. TD bases these contentions under the
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`theory that TT is “using this animation as evidence of how some displays actually
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`operate.” Id. at 11. This argument misstates the purpose of Exhibit 2203, as well as
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`its demonstrative nature.
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`As is clear from page 27 of the Patent Owner’s Response, TT offered this
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`material as a demonstrative—providing examples of problems generally present in
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`the technical field, the recognition of these problems in the specification of the
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`’055 patent, TT’s novel, non-obvious solution to these problems, and how the
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`10
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`Case No. CBM2014-00137
`Patent 7,685,055
`claimed invention improved over the prior art. POR at 27 n.4 (describing 2203 as
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`an “example”).
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`Because this exhibit is demonstrative in nature, it is not hearsay under FRE
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`801(c)(2). Nor is it a summary of expert testimony subject to FRE 701 or 702.
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`Finally, TD never articulates any way in which the exhibit lacks authenticity (FRE
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`901) or is improper summaries (FRE 1006). Thus, TD has waived any such
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`arguments.
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`VIII. Conclusion
`For at least these reasons, TT respectfully requests denial of TD’s motion.
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`Dated: June 23, 2015
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`
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`
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`Respectfully submitted,
`
`By: /Erika H. Arner/
`Erika H. Arner, Lead Counsel
`Registration No. 57,540
`
`Joshua L. Goldberg, Backup Counsel
`Registration No. 59,369
`
`Steven F. Borsand, Backup Counsel
`Registration No. 36,752
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`Attorneys for Patent Owner Trading
`Technologies International, Inc.
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`11
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`CBM2014-00137
`Patent 7,685,055
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing Patent
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`
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`Owner’s Opposition to Petitioner’s Motion to Exclude was served on June 23,
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`2015, via email directed to counsel of record for the Petitioner at the following:
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`
`
`Lori A. Gordon
`lgordon-ptab@skgf.com
`
`Jonathan M. Strang
`jstrang-ptab@skgf.com
`
`Robert E. Sokohl
`rsokohl-ptab@skgf.com
`
`
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
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`/Ashley F. Cheung/
`Ashley F. Cheung
`Case Manager
`
`
`
`
`
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`
`12
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