Paper No. ____
` Filed: October 14, 2016
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`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,
`
`Petitioner
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2015-001611
`U.S. Patent 6,766,304 B2
`_________________
`
`REPLY IN SUPPORT OF PATENT OWNER’S MOTION TO
`EXCLUDE UNDER 37 C.F.R. 42.64(C)
`
`
`
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`
`
`1 Case CBM2016-00035 has been joined with this proceeding.
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` Filed: October 14, 2016
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`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,
`
`Petitioner
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2015-001611
`U.S. Patent 6,766,304 B2
`_________________
`
`REPLY IN SUPPORT OF PATENT OWNER’S MOTION TO
`EXCLUDE UNDER 37 C.F.R. 42.64(C)
`
`
`
`
`
`
`1 Case CBM2016-00035 has been joined with this proceeding.
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Case CBM2015-00161
`U.S. Patent 6,766,304
`
`I.
`
`TSE has not been authenticated under FRE 901. ....................................... 1
`
`A.
`
`B.
`
`C.
`
`Petitioners improperly rely on the 2005 Kawashima deposition
`transcript. ............................................................................................... 1
`
`TSE is not authenticated under FRE 902(11) or 901(b)(4). .................. 1
`
`The 2016 Kawashima deposition transcript does not cure the
`authentication issues with TSE. ............................................................ 1
`
`II. TSE is irrelevant under FRE 401. ................................................................ 2
`
`III. The O’Connell Affidavit is does not comply with the rules. ...................... 2
`
`IV. Expert Testimony ........................................................................................... 3
`
`
`
`1
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`
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`
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`I.
`
`Case CBM2015-00161
`U.S. Patent 6,766,304
`
`TSE has not been authenticated under FRE 901.
`
`Petitioners assert that Exhibit 1016 (“TSE”) was “actually disseminated and
`
`otherwise available to the interested public in August 1998” and specifically
`
`“disseminated to 200 participants in the Tokyo Stock Exchange.” See Paper 106 at
`
`8. Nothing in the record proves, however, that TSE is the specific document that
`
`Petitioners allege, and not some other TSE document.
`
`A.
`
`Petitioners improperly rely on the 2005 Kawashima deposition
`transcript.
`
`In their Opposition, Petitioners cite to a deposition transcript taken from
`
`anther proceeding, Ex. 1007 of CBM2015-00179, to attempt to authenticate TSE
`
`(Ex. 1016). This is improper. Ex. 1007 of CBM2015-00179 has not been filed as
`
`an exhibit in the present proceeding and is therefore not a part of the record and
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`cannot be cited in this way.
`
`TSE is not authenticated under FRE 902(11) or 901(b)(4).
`
`B.
`Whether or not TSE is a business record or appears to be an authentic TSE
`
`document, nothing establishes that it is the document allegedly “disseminated to
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`200 participants in the Tokyo Stock Exchange.”
`
`C. The 2016 Kawashima deposition transcript does not cure the
`authentication issues with TSE.
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`
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`Rather than authenticating TSE in the way Petitioners need, the 2016
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`1
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`
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`Kawashima deposition transcript suggests that Mr. Kawashima could not have
`
`Case CBM2015-00161
`U.S. Patent 6,766,304
`
`examined the document in a way that would have differentiated it from any other
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`version. Ex. 2163 at 45-46. Accordingly, it does not establish that TSE is the
`
`document allegedly “disseminated to 200 participants in the Tokyo Stock
`
`Exchange.”
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`II. TSE is irrelevant under FRE 401.
`As pointed out in TT’s motion, TSE is irrelevant because it is not prior art.
`
`Paper 104 at 3-4. Even if TSE was prior art, however, it would still be irrelevant to
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`analysis under 35 U.S.C. § 101.
`
`III. The O’Connell Affidavit is does not comply with the rules.
`Petitioners assert that Ms. O’Connell’s personal knowledge of
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`TransPerfect’s execution of the translation project qualifies her to certify that the
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`resulting translation was a true and accurate translation. Personal knowledge of the
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`project is not, however, personal knowledge of the accuracy of the translation and
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`is thus insufficient to satisfy 37 C.F.R. § 42.63(b). As described in Patent Owner’s
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`motion, Ms. O’Connell did not and cannot attest to the accuracy of the translation
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`itself. Paper 104 at 6.
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`2
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`
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`IV. Expert Testimony
`As pointed out in TT’s motion, its expert’s answers to certain vague and
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`Case CBM2015-00161
`U.S. Patent 6,766,304
`
`ambiguous questions yielded irrelevant testimony that Petitioners are using in a
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`confusing and misleading manner. Nothing in Petitioners’ opposition changes that.
`
`
`Date: October 14, 2016
`
`Respectfully Submitted,
`/Joshua L. Goldberg/ (Reg. No. 59,369)
`By:
`
`3
`
`
`
`Case CBM2015-00161
`U.S. Patent No. 6,766,304
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing REPLY IN
`
`SUPPORT OF PATENT OWNER’S MOTION TO EXCLUDE UNDER 37
`
`C.F.R. 42.64(C) was served on October 14, 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 14, 2016
`
`/Lisa C. Hines/
`Lisa C. Hines
`Litigation Clerk
`
`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
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