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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 CBM2014-00137
`Patent 7,685,055
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`PETITIONER TD AMERITRADE’S
`MOTION TO EXPUNGE EXHIBIT
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`Mail Stop "PA TENT BOARD"
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
`
`Case CBM2014-00137 of
`U.S. Patent No. 7,685,055
`Petitioners TD Ameritrade Holding Corp., TD Ameritrade, Inc., and TD
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`Ameritrade Online Holdings Corp. ("TD Ameritrade") respectfully asks the Board
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`to expunge Exhibit 1010, Memorandum from James M. Hilmert to eSpeed file
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`regarding direct examination of TSE’s 30(b)(6) witness (December 5, 2005),
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`("Hilmert memo") from the record of this proceeding.
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`TD Ameritrade seeks to expunge the Hilmert memo because it is a
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`confidential document of a third party, BGC Partners, Inc. ("BGC," formerly
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`eSpeed, Inc.), and TD Ameritrade’s counsel in this CBM incorrectly believed that
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`the Hilmert memo was already public information when it filed its Petition. BGC
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`did not authorize TD Ameritrade to file the memo with its Petition for this Covered
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`Business Method Review proceeding or use it for any other purpose. Once aware
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`of the error, TD Ameritrade’ s counsel took immediate action in an attempt to
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`remove the Hilmert memo from the public record. BGC has also asked TD
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`Ameritrade to take all reasonable steps to remove it from the public record.
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`Importantly, the Hilmert memo is not needed to decide whether to institute
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`this CBM. The deposition transcript described in the Hilmert memo is the best
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`evidence of the contents of the deposition, and was submitted as Exhibit 1011.
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`Further, the Hilmert memo was cited only once in the Petition, in conjunction with
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`the underlying deposition transcript. Petition at 8
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`("See [Hilmert memo], p. 2 [Exh.
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`1010]; Depo. Transcript, pp. 00 12-3 3 [EXIT1. 1011]"). Finally, Patent Owner
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`1
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`
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`Case CBM2014-00137 of
`U.S. Patent No. 7,685,055
`Trading Technologies attended the deposition that is the subject of the Hilmert
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`memo. As such, Patent Owner will not be prejudiced by the expungement.
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`Patent Owner Trading Technologies previously opposed and still opposes
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`expungement, arguing it does not understand why TD Ameritrade seeks to
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`expunge. Patent Owner’s complaint is not credible. TD Ameritrade informed
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`Patent Owner of the error by email on July 16, 2014, that it did not have
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`authorization to file the confidential Hilmert memo. TD Ameritrade further
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`discussed the inadvertent disclosure of the Hilmert memo at a conference call with
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`the Board on July 17, 2014. (Ex. 3001 at 33-36).
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`Accordingly, TD Ameritrade asks the Board to expunge the Hilmert memo
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`from the record of this proceeding.
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`Respectfully submitted,
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`L A. Gordon (Reg. No. 50,633)
`Robert E. Sokohl (Reg. No. 36,013)
`Attorneys for Petitioners
`
`Date: August 25, 2014
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`2
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`Case CBM2014-00137 of
`U.S. Patent No. 7,685,055
`CERTIFICATION OF SERVICE
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`The undersigned hereby certifies that the foregoing PETITIONER TD
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`AMERITRADE’S MOTION TO EXPUNGE EXHIBIT was served on August
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`25, 2014, in its entirety via email on the following counsel of record:
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`Lead Counsel Erika H. Amer (Reg. No. 57,540)
`erika. arner@finnegan. corn
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`Back-up Counsel Steven F. Borsand (Reg. No. 36,752)
`Steve.Borsand(tradingtechnologies. corn
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`Back-Up Counsel
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`Joshua L. Goldberg (Reg. No. 59,369)
`joshua. goldberg@fiimegan.com
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`STERNE, KESSLER, GOLDSTEiN & Fox P.L.L.C.
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`LL* A. Gordo
`Lead Attorney for Petitioners
`Registration No. 50,633
`
`Date: August 25, 2014
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`1100 New York Avenue, N. W.
`Washington, D.C.20005-3934
`(202) 371-2600
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`18962 14 1DOCX
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