Paper No.
`Filed: October 7, 2016
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`TRADESTATION GROUP, INC.,
`TRADESTATION SECURITIES, INC., IBG LLC, and
`INTERACTIVE BROKERS LLC,
`
`Petitioners
`
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner
`_________________
`
`Case CBM2015-001611
`U.S. Patent 6,766,304 B2
`_________________
`
`PATENT OWNER’S OPPOSITION TO MOTION TO EXCLUDE
`
`
`
`
`
`
`
`
`
`1 Case CBM2016-00035 has been joined with this proceeding.
`
`
`
`
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`
`
`
`TABLE OF CONTENTS
`
`I. Preliminary Statement ..................................................................................... 1
`II. Standard ............................................................................................................ 2
`III. TT’s Testimonial Evidence From District Court Is Admissible (Exhibits
`2211, 2216, 2218–2222, 2223, 2224, 2225, 2227–2229, 2232, 2239, 2247, 2251,
`2273–2276, 2286–2288, and 2292–2296). ................................................................ 3
`A. Nothing justifies treating TT’s testimonial evidence from district
`court differently from Petitioners’ testimonial evidence from district
`court (i.e., the 2005 Kawashima deposition transcript). ............................... 3
`B. TT’s testimonial evidence from district court is admissible under
`Federal Rule of Evidence 807. ......................................................................... 5
`IV. Christopher Thomas’ Entire Declaration Is Admissible (Exhibit 2169). ... 8
`A. The Board is equipped to properly assess Mr. Thomas’
`Testimony. ......................................................................................................... 9
`B. Mr. Thomas’ testimony is used to further appropriate objectives. 9
`C. The objected-to statements prove the evidence is not hearsay. ....10
`D. Petitioner’s objections go to the weight of the evidence, not their
`admissibility. ...................................................................................................11
`E. Papers submitted from other proceedings are proper. .................11
`V. TT’s Documentary Evidence From District Court Is Admissible (Exhibits
`2210, 2212-2214, 2223(pages 13 and 14), 2240-2246, 2250, 2252-2272, and
`2277). .......................................................................................................................11
`A. The exhibits are authentic. ...............................................................11
`B. The exhibits are not hearsay. ...........................................................14
`VI. Court Documents Are Admissible (Exhibits 2030, 2032, and 2278). ........15
`VII. Conclusion .......................................................................................................15
`
`
`
`
`
`
`ii
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`
`I.
`
`Preliminary Statement
`
`37 C.F.R. § 42 governs these proceedings, and it “shall be construed to
`
`secure the just, speedy, and inexpensive resolution of every proceeding.” § 42.1(b).
`
`While Petitioners may prefer to focus on the “speedy” and “inexpensive”
`
`requirements, the “just” requirement cannot be ignored. In these proceedings, the
`
`“just” requirement mandates that the Board consider all of the evidence introduced
`
`by Patent Owner Trading Technologies International, Inc. (“TT”).
`
`Much of TT’s evidence comes from the same district court litigation as
`
`Petitioners’ own exhibit in related cases (e.g., Exhibit 1010 in CBM2015-00181),
`
`the transcript of a 2005 deposition of Atshushi Kawashima on which Petitioners
`
`rely to allege the prior art status of TSE (Exhibit 1016). Petitioners provide no
`
`basis or justification for the Board to treat TT’s evidence from district court any
`
`differently from their own. Rather than simply “dump[ing]” its evidence into these
`
`proceedings, as alleged by Petitioners, TT took steps to ensure its evidence could
`
`come into the proceedings in a “just” way.
`
`First, unlike Petitioners who ignored the Federal Rules of Evidence in
`
`introducing the 2005 Kawashima deposition transcript into these proceedings, TT
`
`sought to have certain Federal Rules of Evidence waived in the proceedings. Paper
`
`47, Board’s Order, at 2. Petitioners opposed this request despite the fact that it
`
`would have cured the hearsay problem associated with the 2005 Kawashima
`
`1
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`deposition transcript, and the Board denied the request. See id. at 2-3.
`
`Second, TT sought additional discovery in the form of subpoenas to
`
`facilitate depositions that would reproduce here the evidence it (and Petitioners)
`
`already had from district court. Id. at 4. Petitioners again opposed, and the Board
`
`denied TT’s request because it was “speculative.” Id. at 5. Left with no other
`
`options, TT introduced its evidence from district court in the same way that
`
`Petitioners introduced their evidence from district court. There is no rule that
`
`prevented TT from doing so. Petitioners could have challenged TT’s evidence by
`
`cross-examining its witnesses. They simply chose not to.
`
`TT’s evidence proves the validity of its patent. Petitioners cannot be allowed
`
`to bury their heads in the sand rather than face it. While the Board should consider
`
`all of TT’s evidence directly, at a minimum, it was proper for TT’s expert to rely
`
`on the evidence, so it must remain in the record. Ignoring the evidence would be
`
`unjust and would deprive TT of due process.
`
`II.
`
`Standard
`
`As the movant, Petitioners bear the burden of proving that the challenged
`
`exhibits are inadmissible. CBM2012-00002, Paper 66 at 59 (January 23, 2014); 37
`
`C.F.R. § 42.20(c). Petitioners failed to meet their burden, and the Board disfavors
`
`excluding evidence as a matter of policy; “it is better to have a complete record of
`
`the evidence submitted by the parties than to exclude particular pieces.”
`
`2
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`
`CBM2012-00002, Paper 66 at 60-61.
`
`III. TT’s Testimonial Evidence From District Court Is Admissible (Exhibits
`2211, 2216, 2218–2222, 22232, 2224, 2225, 2227–2229, 2232, 2239, 2247,
`2251, 2273–2276, 2286–2288, and 2292–2296).3
`Exhibits 2211, 2216, 2218–2222, 2223, 2224, 2225, 2227–2229, 2232, 2239,
`
`2247, 2251, 2273–2276, 2286–2288, and 2292–2296 are declarations under
`
`penalty of perjury, transcripts of sworn deposition testimony, and transcripts of
`
`sworn trial testimony. All are from district court, many from the same litigation as
`
`the 2005 Kawashima deposition transcript, TT v. eSpeed, Inc.
`
`A. Nothing justifies treating TT’s testimonial evidence from district
`court differently from Petitioners’ testimonial evidence from
`district court (i.e., the 2005 Kawashima deposition transcript).
`
`Everyone’s testimony from district court was under penalty of perjury, and
`
`all such testimony was subject to cross examination in these proceedings.
`
`
`2 Exhibit 2223 contains one document at pages 13-14 that is documentary,
`
`not testimonial, evidence from district court, so it is addressed in Section V of this
`
`paper. Petitioners objected to the testimonial evidence in Exhibits 2216, 2218,
`
`2219, 2221, 2223, 2227, 2229, and 2239 as lacking authentication, but they have
`
`raised nothing that would call the authenticity of this testimony into question. The
`
`Exhibits themselves contain the declarants’ declarations that their testimony was
`
`under penalty of perjury. Nothing more is required.
`
`3 Petitioners failed to timely object to Exhibit 2029, so it must be admitted.
`
`3
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`Regardless of whether such cross examination would be classified as routine
`
`discovery or additional discovery, the Board recognized that cross examination is
`
`warranted when a party makes testimonial evidence a pivotal part of its case, even
`
`if that testimonial evidence is from a prior proceeding. CBM2015-00181, Paper 34
`
`at 3.
`
`Before filing its PO responses, TT requested additional discovery in the
`
`form of subpoenas to proactively facilitate Petitioners’ cross examination of the
`
`witnesses behind TT’s testimonial evidence from district court. Paper 47, Board’s
`
`Order, at 4. Rather than seizing this opportunity, Petitioners opposed TT’s request.
`
`Id. And the Board denied TT’s request because “[t]he need for any subpoenas . . .
`
`was speculative.” Id. at 5. At the time, the Board pointed out that the request was
`
`premature because “[TT didn’t] know what evidence [it would] rely on, whether
`
`the petitioner [would] object to such evidence or have the need to cross examine
`
`[the] people.” Ex. 2107 at 44:16-45:3.
`
`Ultimately, TT never needed to repeat its request for additional discovery in
`
`the form of subpoenas, because Petitioners made a litigation choice to not even
`
`request cross examination to challenge any of TT’s testimonial evidence from
`
`district court. Petitioners’ litigation choice does not change the fact that TT’s
`
`testimonial evidence from district court is just as trustworthy as Petitioners’
`
`testimonial evidence from district court and should, therefore, be admitted in these
`
`4
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`proceedings if the 2005 Kawashima deposition transcript is admitted.
`
`B.
`
`TT’s testimonial evidence from district court is admissible under
`Federal Rule of Evidence 807.
`
`Federal Rule of Evidence 807 provides a “residual exception” to the hearsay
`
`rule. The Board’s recent Final Written Decision in Apple Inc. v. VirnetX Inc. is
`
`instructive on the rule’s applicability to TT’s testimonial evidence from district
`
`court. IPR2015-00811, Paper 44 at 68-70 (Sep. 8, 2016). In the Apple case, the
`
`Board addressed the admissibility of evidence just like TT’s: declarations that were
`
`prepared for other proceedings and district court trial and deposition testimony. Id.
`
`at 68. After pointing out that the party challenging the admissibility of the evidence
`
`“chose not to seek the opportunity to cross examine the declaration testimony,”
`
`which the Board had defined to include the district court trial and deposition
`
`testimony, the Board explained why the residual exception of Federal Rule of
`
`Evidence 807 rendered everything admissible. Id. at 68-70.
`
`To fall under the exception, a “statement must: 1) have equivalent
`
`circumstantial guarantees of trustworthiness; 2) be offered as evidence of a
`
`material fact; 3) be more probative on the point for which it is offered than any
`
`other evidence that the proponent can obtain through reasonable efforts; and 4) be
`
`in the interests of justice to admit.”4 Id. at 69 (citing Fed. R. Evid. 807). As
`
`
`4 Federal Rule of Evidence 807 includes a notice requirement, but that
`
`5
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`recognized by the Board in Apple, the residual exception is to be reserved for
`
`“exceptional cases.” Id. at 69 (citing Conoco Inc. v. Dep’t of Energy, 99 F.3d 387,
`
`392 (Fed. Cir. 1996), as amended on rehearing in part (Jan. 2, 1997)). But “[t]rial
`
`courts are accorded wide discretion in applying the residual hearsay exception.” Id.
`
`(citing Doe v. United States, 976 F.2d 1071, 1076–77 (7th Cir. 1992), cert. denied
`
`510 U.S. 812 (1993); United States v. North, 910 F.2d 843, 909 (D.C. Cir. 1990)
`
`cert. denied 500 U.S. 941 (1991)).
`
`TT’s testimonial evidence from district court has the same circumstantial
`
`guarantees of trustworthiness as the testimony at issue in Apple and those
`
`declarations actually created for these proceedings. See id. at 69-70. “The vast
`
`majority of testimony in inter partes reviews[/CBMs] is admitted in paper form, as
`
`a declaration, instead of as live witness testimony. Thus, whether or not testimony
`
`is specifically created for a specific IPR[/CBM] or is created for another
`
`proceeding, if the declaration is sworn testimony and the witness is available for
`
`cross-examination, the testimony bears the same guarantees of trustworthiness.” Id.
`
`at 70. Here, like in Apple, TT’s testimonial evidence from district court is sworn
`
`testimony and the witnesses would have been available for cross-examination had
`
`requirement is not relevant to these proceedings. Unlike a district court trial or
`
`hearing, both parties to these proceedings were on notice of all of the evidence as
`
`soon as it was filed and thus had an opportunity to meet it before the oral hearing.
`
`6
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`Petitioners sought such cross examination.5 Thus, TT’s testimonial evidence from
`
`district court has the same circumstantial guarantees of trustworthiness as those
`
`declarations actually created for these proceedings.
`
`As required by Federal Rule of Evidence 807, TT’s testimonial evidence
`
`5 TT never needed to repeat its request to subpoena any of the witnesses
`
`because Petitioners never sought to depose them. Moreover, even if Petitioners had
`
`sought to depose the witnesses and the Board refused the request, the earlier
`
`testimony of such witnesses would still have the same circumstantial guarantees of
`
`trustworthiness as those declarations actually created for these proceedings because
`
`other parties in the earlier litigations had the same motivation to develop the
`
`testimony as Petitioners, that is, the motivation to invalidate TT’s patents. See
`
`IPR2015-00811, Paper 44 (Sep. 8, 2016) at 70 (citing Fed. R. Evid. 804(b)(1) as
`
`further support for its finding that the testimony from other proceedings had the
`
`same guarantees of trustworthiness); see also Fed. R. Evid. 804(b)(1) (exception to
`
`hearsay rule for testimony “offered against a party . . . whose predecessor in
`
`interest had . . . an opportunity and similar motive to develop it by direct, cross-, or
`
`redirect examination”); Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276, 283
`
`(4th Cir. 1993) (“[P]rivity is not the gravamen of the analysis. Instead, the party
`
`against whom the deposition is offered must point up distinctions in her case not
`
`evident in the earlier litigation that would preclude similar motives.”)
`
`7
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`from district court is also offered as evidence of a material fact, more probative on
`
`the point for which it is offered than any other evidence that TT could obtain
`
`through reasonable efforts, and in the interests of justice to admit. For example, as
`
`recognized by Petitioners, the evidence goes to secondary considerations. Paper
`
`103 at 3. This evidence is more probative than any other evidence that TT could
`
`obtain through reasonable efforts because Petitioners opposed and the Board
`
`denied TT’s efforts to obtain more probative evidence through additional discovery
`
`in the form of subpoenas. See Section III.A. And it is in the interests of justice to
`
`admit the evidence because TT will otherwise be deprived of due process. In
`
`addition, if the Board was to admit Petitioners’ evidence of the same type (i.e., the
`
`2005 Kawashima deposition transcript) but exclude TT’s evidence, TT would be
`
`unfairly prejudiced. Accordingly, the Board should admit TT’s testimonial
`
`evidence from district court in these proceedings if the 2005 Kawashima
`
`deposition transcript is admitted in these proceedings.
`
`IV. Christopher Thomas’ Entire Declaration Is Admissible (Exhibit 2169).
`First, Petitioners fail to identify any timely objection supporting their
`
`arguments, so Ex. 2169 must be admitted in its entirety. See Paper 103 at 11 (citing
`
`only Ex. 1052, an exhibit that does not exist in the proceeding); 37 C.F.R.
`
`§ 42.64(b)(1). Second, Petitioners fail to support their assertion that TT’s expert
`
`Christopher Thomas’ testimony “exceed[s] the proper boundaries of expert
`
`8
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`testimony.” See Paper 103 at 11-12. Not only do the examples cited by Petitioners
`
`fail to match what is in Ex. 2169, none of the case law cited by Petitioners applies
`
`to PTAB proceedings. Instead, it focuses on issues specific to juries.
`
`A. The Board is equipped to properly assess Mr. Thomas’
`Testimony.
`
`The primary reason for excluding expert testimony is juries. Indeed, the
`
`principles underlying Marvel Characters, Inc. v. Kirby, cited by Petitioners, relate
`
`to the effect that hearsay, relied upon by an expert, may have on a jury. 726 F.3d
`
`119, 136 (2d Cir. 2013) (citing Nimely v. City of New York, 414 F.3d 381, 397-98
`
`(2d Cir. 2005) and Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 666
`
`(S.D.N.Y. 2007)). Such principles do not apply here. “[U]nlike a lay jury, the
`
`Board . . . has significant experience in evaluating expert testimony. Accordingly,
`
`the danger of prejudice in this proceeding is considerably lower than in a
`
`conventional district court trial.” IPR2015-01097, Paper 70 at 44 (9/12/2016).
`
`B. Mr. Thomas’ testimony is used to further appropriate objectives.
`In this case, Mr. Thomas’s statements are not improper expert testimony,
`
`because an expert is allowed leeway to use hearsay reasonably. Indeed, Marvel,
`
`cited by Petitioners, acknowledges that the rules grant experts leeway with respect
`
`to hearsay evidence, and that an expert could, “for example, help to identify, gauge
`
`the reliability of, and interpret evidence that would otherwise elude, mislead, or
`
`remain opaque to a layperson.” Marvel, 726 F.3d at 135. Marvel further
`
`9
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`contemplates that “such a witness might offer background knowledge or context
`
`that illuminates or places in perspective past events.” Id. at 136. Mr. Thomas is
`
`doing just that—helping interpret evidence that would otherwise elude, mislead, or
`
`remain opaque to a layperson, and offering background knowledge or context that
`
`illuminates or places in perspective past events. For example ¶¶ 79-82 and 85-88,
`
`characterized by Petitioners as describing and characterizing what motivated the
`
`inventors to develop the claimed subject matter, and describing the development of
`
`a commercial embodiment, provide such background and context. Notably, these
`
`paragraphs use Exhibits 2212 and 2213 as demonstratives to illustrate the points
`
`discussed, not for any hearsay purpose or any other purpose that would require
`
`further authentication than that by Mr. Thomas himself.
`
`Moreover, “an expert is permitted to disclose hearsay for the limited purpose
`
`of explaining the basis for his expert opinion.” United States v. Dukagjini, 326
`
`F.3d 45, 58 (2d Cir. 2003). That is what Mr. Thomas is doing here. For example, in
`
`¶¶ 90-92, 98, and 99, Mr. Thomas relies upon the experience of others as a basis
`
`for his opinion of the state of electronic trading and how MD Trader fit into it.
`
`C. The objected-to statements prove the evidence is not hearsay.
`Rather than rely on evidence as hearsay, Mr. Thomas articulates the effect
`
`the evidence would have had on a person of ordinary skill in the art. The Board has
`
`recognized this distinction in other proceedings, and it should do so here. IPR2015-
`
`10
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`01039, Paper 37 at 44 (September 14, 2016) (“The [statements] are not hearsay
`
`because Petitioner offers those statements for the effect they would have had on a
`
`person of ordinary skill in the art, not for the truth of the matter asserted.”).
`
`D.
`
`Petitioner’s objections go to the weight of the evidence, not their
`admissibility.
`
`“A strong public policy exists for making information filed in a non-jury,
`
`quasijudicial administrative proceeding available to the public, especially in an
`
`[IPR/CBM], which determines the patentability of claims in an issued patent. The
`
`Board has discretion to assign appropriate weight to evidence.” IPR2015-00841,
`
`Paper 77 at 88 (June 27, 2016). Petitioners’ arguments thus overstep the
`
`appropriate remedy for faults in expert testimony. At most, Petitioners’ arguments
`
`relate to the weight of the evidence, not its admissibility.
`
` Papers submitted from other proceedings are proper.
`
`E.
`Finally, Petitioners argue that neither the Federal Rules nor the Board’s rules
`
`permit expert testimony based on evidence from a different proceeding. Paper 103
`
`at 12. Petitioners are wrong. As discussed in Section III, it does not matter what
`
`proceeding the evidence is from; Mr. Thomas can properly rely on the evidence.
`
`V. TT’s Documentary Evidence From District Court Is Admissible
`(Exhibits 2210, 2212-2214, 2223 (pages 13 and 14), 2240-2246, 2250,
`2252-2272, and 2277).
`A. The exhibits are authentic.
`First, most of the exhibits are authentic at least because they were previously
`
`11
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`produced in response to discovery requests in earlier related litigations. Ex. 2337,
`
`p. 2-4. See Paul Mitchell Sys. v. Quality King Dist., Inc., 106 F.Supp.2d 462, 472
`
`(S.D.N.Y. 2000) (“[T]he act of production implicitly authenticated the
`
`documents.”). McQueeney v. Wilmington Trust, Co., 779 F.2d 916, 929 (3d Cir.
`
`1985) (“[T]he fact that the copies were produced by the plaintiff in answer to an
`
`explicit discovery request . . . while not dispositive on the issue of authentication,
`
`is surely probative.”). As such, the exhibits are authentic and admissible.
`
`Also, Federal Rule of Evidence 901(a) states that the authentication
`
`requirement is satisfied if the proponent presents “evidence sufficient to support a
`
`finding that the item is what the proponent claims it is.” Here, the exhibits that
`
`Petitioners objected to contain sufficient evidence to support a finding that they are
`
`authentic. The third party emails, for example, contain distinct characteristics
`
`found on the page, including metadata, contents, and real names of the parties in
`
`the body of the emails that are sufficient to support a finding that the exhibit is
`
`what TT claims it to be. (See, e.g., QSC Audio Products, LLC v. Crest Audio, Inc.,
`
`IPR2014-00127, Paper 43 at 12 (April 29, 2015) (“[H]aving considered and
`
`weighed the distinctive characteristics of the articles and the circumstances
`
`surrounding their retrieval from the AES E-Library, we find that [the references]
`
`are what they appear to be”); see also Motorola Mobility, LLC v. Intellectual
`
`Ventures I, LLC, CBM2015-00004, Paper No. 33 at 15 (March 21, 2016) (“the
`
`12
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`distinctive characteristics found on the tile page, table of contents, and copyright
`
`page of Exhibit 2011 are sufficient to support a finding that the exhibit is what
`
`Patent Owner claims it to be.”). Furthermore, no “declaration from the author . . . is
`
`required to support a finding that the document is what it claims to be.” EMC
`
`Corp. v. Personal Web Tech., LLC, et al., IPR2013-00087, Paper No. 69 at 38
`
`(May 15, 2014).
`
`And Petitioners have failed to provide any substantial reason to doubt the
`
`authenticity of any of the exhibits, as there is none. See id. at 42 (“[The movant]
`
`does not present sufficient or credible evidence to the contrary”). Nor have
`
`Petitioners or any of their allies ever provided substantive reasons to doubt the
`
`authenticity of these exhibits in the past. In fact, Petitioners neglected to disclose
`
`that many of the exhibits (e.g., third-party emails) were actually produced by
`
`parties in previous litigations who had the same motivation as the Petitioners here -
`
`to invalidate Patent Owner’s patents. And those parties in previous litigation, who
`
`would have stood to gain from a denial of admission of these same exhibits, had no
`
`reason to, and did not, challenge the authenticity of the exhibits. Ex. 2337, p. 2-4.
`
`Finally, Petitioners’ challenges to the exhibits (e.g., “TT and its technical
`
`expert use them here to support their assertions regarding alleged copying of the
`
`claimed invention by others” (Paper No. 103 at 7)) are more appropriately
`
`addressed as questions of sufficiency of proof, not admissibility. Such challenges
`
`13
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`should be raised in the case-in-chief, not a Motion to Exclude. See EMC Corp. v.
`
`ACQIS LLC, IPR2014-01469, Paper 56 at 20 (March 8, 2016).
`
`The exhibits are not hearsay.
`
`B.
`As for Petitioners’ hearsay objection to the exhibits, the exhibits are not
`
`hearsay at least because they are not offered for the truth of the matter asserted. For
`
`example, the challenged third-party emails (Exhibits 2210, 2223 (pages 13 and 14),
`
`2240-2246, 2252-72, 2277) were offered to show secondary considerations of non-
`
`obviousness of the invention, such as evidence of a problem, unexpected results,
`
`skepticism, praise, and copying. Truth of the specific statements in the emails is
`
`irrelevant. See CA, Inc. v. Simple.com, Inc., 780 F.Supp.2d 196, 227-228
`
`(E.D.N.Y. Mar. 5, 2009) (“The Meininger email is not hearsay because it is not
`
`being offered for the truth of its contents. The Meininger email contains statements
`
`claiming that the Meininger web page: (1) is ‘a REAL use for DHTML’; (2)
`
`behaves just like ‘windowmaker’; (3) is ‘ALL done with javascript and DHTML’;
`
`and (4) is ‘VERY graphics intensive,’ etc. However, the Meininger email is not
`
`being offered to prove the veracity of the foregoing statements.” (citations
`
`omitted).). Furthermore, as is the case with Petitioners’ objections to the
`
`authenticity of the exhibits, their objections relating to hearsay are more
`
`appropriately addressed as questions of sufficiency of proof, not admissibility.
`
`Finally, regardless of whether the exhibits constitute hearsay or if an
`
`14
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`exception applies, they are admissible because Mr. Thomas properly relied on
`
`them in preparing his declaration, as discussed Section IV.
`
`VI. Court Documents Are Admissible (Exhibits 2030, 2032, and 2278).
`Petitioners failed to timely object to Exhibits 2030 and 2032, so they must
`
`be admitted. Also, Ex. 2030 (Notification of Docket Entry) is not a jury verdict
`
`form, and Ex. 2032 is not a docket entry (Appendix to the USPTO Examination
`
`guidelines), as Petitioners allege. Finally, any docket entry and jury verdict forms
`
`are offered for the relevant purpose of showing how another party and a jury
`
`reacted to the evidence in these proceedings. See, e.g., Paper 22 at 59; Paper 76 at
`
`64. They are not hearsay because they are not offered for the truth of the matter
`
`asserted and because they qualify as public records under Fed. R. Evid. 803(8).
`
`They were prepared by a jury and court, authorized by law, and recorded in the
`
`public office of the U.S. Court for the Northern District of Ill.
`
`VII. Conclusion
`For these reasons, the Board should exclude none of TT’s evidence. While
`
`the Board should consider TT’s evidence directly, at a minimum, it was proper for
`
`TT’s expert to rely on the evidence, so it must remain in the record.
`
`Respectfully Submitted,
`
`
`
`
`
`Date: October 7, 2016
`
`
`
`/Joshua L. Goldberg/
`By:
`Joshua L. Goldberg (Reg. No. 59,369)
`
`15
`
`

`
`CBM2015-00161
`Patent No. 6,766,304
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of PATENT OWNER’S
`
`OPPOSITION TO MOTION TO EXCLUDE was served on October 7, 2016,
`
`via email directed to counsel of record for the Petitioner at the following:
`
`Robert E. Sokohl
`rsokohl@skgf.com
`
`John C. Phillips
`phillips@fr.com
`
`Kevin Su
`CBM41919-0005CP1@fr.com
`
`Michael T. Rosato
`mrosato@wsgr.com
`
`Matthew A. Argenti
`margenti@wsgr.com
`
`
`
`
`Dated: October 7, 2016
`
`
`
`
`
`
`
`/Valencia Daniel/
`Valencia Daniel
`Litigation Legal Assistant
`
`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
`
`
`
`16