Paper No.
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`Filed: June 23, 2017
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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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`TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC., IBG LLC, and
`INTERACTIVE BROKERS LLC
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`Petitioners
`v.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
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`Patent Owner
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`Case CBM2015-001611
`U.S. Patent 6,766,304
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`PATENT OWNER’S MOTION TO MAINTAIN CONFIDENTIAL
`INFORMATION UNDER SEAL PENDING DISPOSITION OF
`APPEAL
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`1 Case CBM2016-00035 has been joined with this proceeding.
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`Filed: June 23, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC., IBG LLC, and
`INTERACTIVE BROKERS LLC
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`
`
`Petitioners
`v.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`
`
`
`Case CBM2015-001611
`U.S. Patent 6,766,304
`
`
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`PATENT OWNER’S MOTION TO MAINTAIN CONFIDENTIAL
`INFORMATION UNDER SEAL PENDING DISPOSITION OF
`APPEAL
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`1 Case CBM2016-00035 has been joined with this proceeding.
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`I.
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`Statement of Relief Requested
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`Pursuant to this Board’s authorization on June 13, 2017, Patent Owner
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`Case CBM2015-00161
`U.S. Patent 6,766,304
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`respectfully requests that all sealed documents in CBM2015-00161 be preserved in
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`non-public form pending disposition of any appeals. Moreover, within 10 days of the
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`disposition of all appeals in this matter, Patent Owner respectfully requests that all
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`confidential information filed by Patent Owner be expunged from the record pursuant
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`to Rule 42.56 and not be made public.
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`Patent Owner has conferred with Petitioner on both requests and Petitioner does
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`not oppose.
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`II. Reasons Why Requested Relief Should Be Granted
`A. The Record Should be Preserved Pending Appeal So the Federal Circuit
`Has Full Access to the Record
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`The Federal Rules of Appellate Procedure and the Federal Circuit Rules require
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`that the record be retained by the Board pending appeal. Specifically, Federal Circuit
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`Rule 17(a) states that “the agency must retain the record.” Federal Circuit Rule 17(d),
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`titled “Access of Parties and Counsel to Original Record” also requires that the parties
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`and their counsel have access to both the sealed and unsealed portions of the record
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`“when a petition for review or notice of appeal is filed.” Petitioner’s Notice of Appeal
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`was filed March 3, 2017, and Patent Owner’s Notice of Cross-Appeal was filed March
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`7, 2017.
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`If the record is not preserved in its entirety, including any sealed portions, and an
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`U.S. Patent 6,766,304
`appeal is taken, the Federal Circuit will not be able to fully consider the issues, which
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`would cause prejudice to Patent Owner and violate the appellate rules. Moreover, as
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`the Board did not rely on any of this confidential information in its final written
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`decision or decisions denying rehearing, such information may properly be maintained
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`under seal here.
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`B. Subsequent to the Disposition of Appeal, Confidential Information
`Should be Expunged
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`Additionally, Patent Owner respectfully requests that subsequent to the
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`dispositions of all appeals, all sealed confidential information filed on the CBM docket
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`be expunged for the reasons set forth below.
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`1. The Board Found Good Cause to Seal Patent Owner’s
`Confidential Information
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`In connection with its Patent Owner’s Response, TT filed four Motions to Seal.
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`(Papers 53, 62, 91, and 93). These motions covered certain pleadings, declarations and
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`exhibits containing or referring to Patent Owner’s confidential business information.
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`(Papers 54, 63, 68, 89, and 94; Exhibits 2169, 2172, 2224, 2225, 2232, 2247, 2270,
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`2286, 2294, and 2295).
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`All four Motions to Seal were granted. (Paper 130). Such information should be
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`maintained under seal because this Board has already found that there was good cause
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`to grant the motions to seal in the first instance. (Paper 130, at 3). Specifically, TT
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`identified that the sealed papers contain sensitive business information that would not
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`U.S. Patent 6,766,304
`otherwise be published or made available to the public. As this information was not
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`relied on in the Final Written Decision here, protecting the confidential material
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`throughout the appeals does not impact the public interest in obtaining access to these
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`proceedings. Further, any impact to the public interest has been minimized as non-
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`confidential versions of the papers have already been filed. Id.
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`2. The Sealed Documents Contain Confidential and Sensitive
`Business Information That was not Relied on by the Board in the
`Final Written Decision
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`For the same reasons set forth in Patent Owner’s Motions to Seal, namely that
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`the sealed information “contain[s] sensitive business information that would not
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`otherwise be published or made available to the public,” all the information filed under
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`seal in this matter should be expunged from the record within 10 days of the
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`disposition of all appeals. Expunging the sealed information will avoid the prejudice to
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`parties that would be caused by public disclosure of their sealed information. The
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`information Patent Owner seeks to have expunged after the disposition of appeals is as
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`follows: Papers 54, 63, 68, 89, and 94, and Exhibits 2169, 2172, 2224, 2225, 2232,
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`2247, 2270, 2286, 2294, and 2295.
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`Because Patent Owner has already filed redacted versions of the sealed
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`documents, expunging confidential materials after appeal addresses the “public interest
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`in maintaining a complete and understandable file history for public notice purposes”
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`while protecting the confidential and proprietary information of other parties. (See 77
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`Case CBM2015-00161
`U.S. Patent 6,766,304
`FED. REG. 48623). A short summary of these materials follows.
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`First, Patent Owner’s Motion for Additional Discovery (Paper 54) was not cited
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`in the Board’s Final Written Decision and contains (1) confidential information
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`consisting of internal TradeStation documents relating to its products and customers,
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`(2) the deposition transcripts of Mr. Bartleman (TradeStation’s President) and Mr.
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`Galik (IB’s head of software development) and (3) quotations from those documents
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`and transcripts. This information has not been published or otherwise made public.
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`The redacted information is not specifically referenced in the Board’s final decision.
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`Second, the redacted versions of Confidential Patent Owner’s Response (Paper
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`63) and Confidential Corrected Patent Owner’s Response (Paper 68) were cited in the
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`Board’s Final Written Decision and contain declarations and exhibits that contain
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`highly sensitive, non-public information that a business would not make public.
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`Specifically, the redacted portions of Patent Owner’s Response (Paper 64) and
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`Corrected Patent Owner’s Response (Paper 69) contain business sensitive statements in
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`the context of licensing Patent Owner’s products. The redacted information is not
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`specifically referenced in the Board’s final decision.
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`Third, the redacted versions of Patent Owner’s Motion To Submit Supplemental
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`Information And Briefing Under 37 C.F.R. § 42.223(B) (Paper 90) and Patent Owner’s
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`Reply in Support of Its Motion To Submit Supplemental Information And Briefing
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`Under 37 C.F.R. § 42.223(B) (Paper 95) contain confidential information consisting of
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`Case CBM2015-00161
`U.S. Patent 6,766,304
`discussions relating to Petitioners’ confidential information. Petitioners indicated that
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`this information has not been published or otherwise made public. The redacted
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`information is not specifically referenced in the Board’s final decision.
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`Fourth, the confidential information in Exhibits 2169, 2172, 2224, 2225, 2232,
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`2247, 2270, 2286, 2294, and 2295 were not cited or relied upon in the Board’s Final
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`Written Decision. (Paper 130, at 2). These exhibits contain highly sensitive and
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`proprietary Patent Owner information, including internal financial information, third-
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`party business strategy information, and third-party admissions and statements.
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`III. Conclusion
`Patent Owner respectfully requests that the entire CBM record be preserved in
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`its present form pending appeal, including preservation of documents filed under seal
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`in non-public form.
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`Within 10 days after disposition of any appeals, Patent Owner requests that the
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`sealed materials be expunged from the CBM docket.
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`Dated: June 23, 2017
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`Respectfully submitted,
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`By: /Cole B. Richter
`Counsel for Patent Owner
`Trading Technologies International, Inc.
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`Case CBM2015-00161
`U.S. Patent 6,766,304
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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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`OWNER’S MOTION TO MAINTAIN CONFIDENTIAL INFORMATION
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`UNDER SEAL PENDING DISPOSITION OF APPEAL was served on June 23,
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`2017, via email directed to counsel of record for the Petitioner at the following:
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`Robert E. Sokohl
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`rsokohl@skgf.com
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`John C. Phillips
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`phillips@fr.com
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`Kevin Su
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`CBM41919-0005CP1@fr.com
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`Michael T. Rosato
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`mrosato@wsgr.com
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`Matthew A. Argenti
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`margenti@wsgr.com
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`Date: June 23, 2017
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`/Cole B. Richter/
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