Paper No.
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` Filed: September 23, 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 CBM2015-001721
`U.S. Patent 7,783,556
`_________________
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE
`UNDER 37 C.F.R. 42.64(C)
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`1 Case CBM2016-00040 has been joined with this proceeding.
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`
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` Filed: September 23, 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 CBM2015-001721
`U.S. Patent 7,783,556
`_________________
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE
`UNDER 37 C.F.R. 42.64(C)
`
`
`
`
`
`
`
`
`1 Case CBM2016-00040 has been joined with this proceeding.
`
`
`
`CBM2015-00172
`U.S. Patent 7,783,556
`
`
`
`TABLE OF CONTENTS
`
`I. Preliminary Statement ....................................................................................... 1
`II. Standard ............................................................................................................... 1
`III.Certain Deposition Testimony of TT’s Expert Dan Olsen (Ex. 1018) Should
`be Excluded ............................................................................................................... 1
`A. TT Timely Objected to the Deposition Testimony, Which Was
`Relied Upon in Petitioners’ Reply .................................................................. 1
`B. The Probative Value of the Testimony at Pages 57 and 58 of the
`Olsen Transcript is Outweighed by a Danger of Prejudice and Confusing
`the Issues under FRE 403 ................................................................................ 1
`
`
`
`
`
`ii
`
`
`
`CBM2015-00172
`U.S. Patent 7,783,556
`
`I.
`
`Preliminary Statement
`
`Pursuant to 37 C.F.R. §§ 42.64(c) and 42.61(a) and the Federal Rules of
`
`Evidence, Patent Owner Trading Technologies International, Inc. (“TT”), moves to
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`exclude certain deposition testimony of TT’s expert Dan Olsen (Ex. 1018) under
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`FRE 403 because its probative value is substantially outweighed by a danger of
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`unfair prejudice and confusing the issues as the result of vague questioning.
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`II.
`
`Standard
`
`A Motion to Exclude must (a) identify where in the record the objection was
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`made, (b) identify where in the record the evidence sought to be excluded was
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`relied upon by an opponent, (c) address objections to exhibits in numerical order,
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`and (d) explain the objection. Trial Practice Guide, 77 Fed. Reg. 48,756, 48,767
`
`(Aug. 14, 2012).
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`III. Certain Deposition Testimony of TT’s Expert Dan Olsen (Ex. 1018)
`Should be Excluded
`A. TT Timely Objected to the Deposition Testimony, Which Was
`Relied Upon in Petitioners’ Reply
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`TT timely objected to Exhibit 1018 during the deposition. Ex. 1018 at 57-58.
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`Petitioners rely upon pages 57 and 58 of the Olsen deposition transcript (Ex. 1018)
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`in their Reply for their 35 U.S.C. § 101 grounds. Reply, Paper 61 at 6.
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`B.
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`The Probative Value of the Testimony at Pages 57 and 58 of the
`Olsen Transcript is Outweighed by a Danger of Prejudice and
`Confusing the Issues under FRE 403
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`The answers at page 57 and 58 were in response to vague and ambiguous
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`1
`
`
`
`CBM2015-00172
`U.S. Patent 7,783,556
`questions yielding irrelevant testimony that Petitioners are using in a confusing and
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`misleading manner to imply that the claimed inventions do not improve computers.
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`18 Q. Okay. Does the GUI in Figure 3 make
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`19 the computer run faster?
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`20 A. That's not the improvement claimed.
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`21 Q. I'm asking. That's the question I'm
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`22 asking.
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`1 A. It does not.
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`2 Q. Does it allow the computer to use less
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`3 energy?
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`4 MS. KURCZ: Objection, form.
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`5 BY MR. SOKOHL:
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`6 Q. Does the GUI in Figure 3 allow the
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`7 computer to use less energy?
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`8 A. That is not one of the claimed
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`9 improvements, no.
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`10 Q. Does the GUI in Figure 3 make the
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`11 computer more efficient relative to the network?
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`12 A. That's not one of the claimed
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`13 improvements, no.
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`2
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`
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`CBM2015-00172
`U.S. Patent 7,783,556
`Ex. 1018 at 57:18-58:13. Rather than admitting the claimed inventions do not
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`improve computers, Mr. Olsen was simply stating what was not explicitly recited
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`by the claims. The probative value of this testimony is thus substantially
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`outweighed by a danger of unfair prejudice and confusing the issues as the result of
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`vague questioning. Accordingly, it should be excluded under FRE 403.
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`Respectfully Submitted,
`
`
`
`
`
`/Joshua L. Goldberg/
`By:
`Joshua L. Goldberg (Reg. No. 59,369)
`
`
`
`Date: September 23, 2016
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`3
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`
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`CBM2015-00172
`U.S. Patent 7,783,556
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing PATENT
`
`
`
`OWNER’S MOTION TO EXCLUDE UNDER 37 C.F.R. 42.64(C) was served
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`on September 23, 2016, via email directed to counsel of record for the Petitioner at
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`the following:
`
`Robert E. Sokohl
`rsokohl@skgf.com
`
`John C. Phillips
`phillips@fr.com
`
`Kevin Su
`CBM41919-0002CP1@fr.com
`
`Michael T. Rosato
`mrosato@wsgr.com
`
`Matthew A. Argenti
`margenti@wsgr.com
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`
`
`Dated: September 23, 2016
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`
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`
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`
`
`/Valencia Daniel/
`Valencia Daniel
`Litigation Legal Assistant
`
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`
`
`4
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