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`Trials@uspto.gov
`571-272-7822
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`Paper 66
`Entered: September 28, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., TRADESTATION SECURITIES, INC.,
`TRADESTATION TECHNOLOGIES, INC., and IBFX, INC.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`
`CBM2015-00161 (Patent No. 6,766,304 B2)1
`CBM2015-00172 (Patent No. 7,783,556 B1) 2
`CBM2015-00179 (Patent No. 7,533,056 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK and JEREMY
`M. PLENZLER, Administrative Patent Judges.
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`ORDER
`Oral Argument
`37 C.F.R. § 42.70
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`
`
`
`1 Case CBM2016-00035 has been joined with this proceeding.
`2 Case CBM2016-00040 has been joined with this proceeding.
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`
`
`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00172 (Patent No. 7,783,556 B1)
`CBM2015-00179 (Patent No. 7,533,056 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`
`The Scheduling Orders in these proceedings provide for an oral
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`hearing if an oral hearing is requested by the parties and granted by the
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`panel. Petitioners and Patent Owner requested oral hearing pursuant to 37
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`C.F.R. § 42.70. Papers 100, 101.3 The requests are granted.
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`
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`The hearing will commence at 9:00 a.m. Eastern Time on October
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`19, 2016, on the ninth floor of Madison Building East, 600 Dulany Street,
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`Alexandria, Virginia.
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`The Board will provide a court reporter for the hearing and the
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`reporter’s transcript will constitute the official record of the hearing.
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`
`
`Schedule of Arguments
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`The patents at issue in CBM2015-001614 and CBM2015-00181 both
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`claim priority to the patent at issue in CBM2015-00182. Arguments in these
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`proceedings are consolidated, and each party will have 90 minutes total time
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`to present arguments.
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`Arguments for CBM2015-00179 and CBM2015-00172 are not
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`consolidated with arguments for any other proceeding. Each party will have
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`30 minutes total time, for each of these proceedings, to present arguments.
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`
`3 For the purposes of this Order, CBM2015-00161 is representative and all
`citations are to papers in CBM2015-00161 unless otherwise noted.
`4 CBM2016-00035 and CBM2016-00040 are joined to CBM2015-00161
`and CBM2015-00172, respectively. No additional time is allotted for
`argument from Petitioners in CBM2016-00035 and CBM2015-00040. See
`Paper 41, 4 (indicating that Petitioners agreed to take a “back-seat” role in
`the joined proceeding).
`
`2
`
`
`
`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00172 (Patent No. 7,783,556 B1)
`CBM2015-00179 (Patent No. 7,533,056 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`
`Arguments will be heard according to the following schedule:
`
`Proceeding
`CBM2015-00179
`CBM2015-00172
`Break
`CBM2015-00161, 181, 182
`
`Time
`9:30 a.m. – 10:30 a.m.
`10:45 a.m. – 11:45 a.m.
`11:45 p.m. – 1:30 p.m.
`1:30 p.m. – 4:30 p.m.
`
`
`
`
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`Order of Arguments
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`Petitioners bear the ultimate burden of proof that the challenged
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`claims are unpatentable. Petitioners will open each hearing by presenting its
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`arguments regarding the challenged claim for which we instituted trial.
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`Thereafter, Patent Owner will argue its opposition to Petitioners’ arguments.
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`Petitioners may reserve time to rebut Patent Owner’s opposition.
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`
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`Prohibition of New Arguments or Evidence
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`
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`The parties are not permitted to raise new arguments or evidence at
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`oral hearing. Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
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`48,768 (Aug. 14, 2012). Any new arguments or evidence will not be
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`considered.
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`
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`Demonstratives
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`Demonstrative exhibits are intended to be visual aids to assist a party
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`in making its oral presentation. CBS Interactive Inc. v. Helferich Patent
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`Licensing, LLC, Case No. IPR2013-00033, slip op. at 3, (PTAB Oct. 23,
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`2013)(Paper 118). Demonstrative exhibits are not evidence and as such, the
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`exhibits cannot add new evidence to the record of the proceeding. St. Jude
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`3
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`
`
`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00172 (Patent No. 7,783,556 B1)
`CBM2015-00179 (Patent No. 7,533,056 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`Medical, Cardiology Division, Inc. v. The Board of Regents of the University
`
`of Michigan, Case No. IPR2013-00041, slip op. at 2 (PTAB Jan. 27, 2014)
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`(Paper 65). Demonstrative exhibits are not an opportunity for additional
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`briefing. Id. at 3. Arguments that have not been made previously cannot be
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`made at the trial hearing, and thus, cannot be in a demonstrative exhibit. Id.
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`Similarly, the exhibits cannot rely on evidence that, although it is in the
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`record, was never specifically discussed in any substantive paper before the
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`Board. Id.
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`
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`Demonstrative exhibits are limited to reproduction of portions of
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`papers of record or portions of the evidence specifically discussed in the
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`substantive papers of record. Demonstrative exhibits must include a citation
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`to where the reproduced portion of the paper is in the record or to where the
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`evidence is discussed in a substantive paper in the record.
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`
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`Objections to Demonstratives
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`Under 37 C.F.R. § 42.70(b), the parties shall serve any demonstrative
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`exhibits upon each other at least five business days prior to the hearing. The
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`parties shall file the demonstrative exhibits at least two business days prior
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`to the hearing.
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`We expect that the parties will meet and confer in good faith to
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`resolve all objections to demonstrative exhibits, but if such objections cannot
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`be resolved, the parties may file objections to demonstratives with the Board
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`no later than two business days before the hearing. The objections should
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`identify with particularity which portions of the demonstrative exhibits are
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`4
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`
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00172 (Patent No. 7,783,556 B1)
`CBM2015-00179 (Patent No. 7,533,056 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
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`subject to objection, include a copy of the objected-to portions, and include a
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`one-sentence statement of the reason for each objection. No argument or
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`further explanation is permitted. We will consider any objections and
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`schedule a conference call if deemed necessary. Otherwise, we will reserve
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`ruling on the objections. Any objection to demonstrative exhibits that is not
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`timely filed will be considered waived.
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`
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`Counsel
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`
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`Lead counsel for each party is expected to be present in person at the
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`oral hearing. Any counsel of record, however, may present the party’s
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`arguments. If either party expects that its lead counsel will not be attending
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`the oral argument, the parties should initiate a joint telephone conference
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`with the panel no later than two business days prior to the oral hearing to
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`discuss the matter.
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`
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`Each party will designate one counsel to present arguments for each
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`of CBM2015-00172 and CBM2015-00179 and one counsel to present
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`consolidated arguments for CBM2015-00161, CBM2015-00181, and
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`CBM2015-00182. Only designated counsel may make objections or
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`otherwise address the panel during the oral hearing. The designated counsel
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`may seek permission from the panel for other counsel of record to address
`
`the panel, if necessary.
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`
`
`
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`5
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`
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00172 (Patent No. 7,783,556 B1)
`CBM2015-00179 (Patent No. 7,533,056 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
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`Special Requests
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`
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`Any special requests for audio visual equipment or reserved seating
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`should be directed to Trials@uspto.gov. Request for special equipment or
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`reserved seating will not be honored unless presented in a separate
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`communication directed to the above email address not less than five days
`
`before the hearing.
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`
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`Public Attendance
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`The hearing will be open to the public for in-person attendance that
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`will be accommodated on a first-come, first served basis. The records of
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`these proceedings include confidential information subject to a protective
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`order. The parties should avoid disclosing confidential information in its
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`demonstratives or oral arguments. If the parties have any concern about
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`disclosing confidential information, they should to contact the Board at least
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`two days in advance of the hearing to discuss the matter.
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`
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`
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`It is so ORDERED.
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`
`
`PETITIONERS:
`
`John Phillips
`Kevin Su
`FISH & RICHARDSON P.C.
`phillips@fr.com
`CBM41919-0002CP1@fr.com
`
`
`
`6
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`
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00172 (Patent No. 7,783,556 B1)
`CBM2015-00179 (Patent No. 7,533,056 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`Michael T. Rosato
`Matthew A. Argenti
`WILSON SONSINI GOODRICH & ROSATI
`mrosato@wsgr.com
`margenti@wsgr.com
`
`PATENT OWNER:
`Erika H. Arner
`Joshua L. Goldberg
`Kevin D. Rodkey
`Rachel L. Emsley
`Cory Bell
`FINNEGAN, HENDERSON, FARABOW,
`GARRET & DUNNER, LLP
`erika.arner@finnegan.com
`joshua.goldberg@finnegan.com
`kevin.rodkey@finnegan.com
`rachel.emsley@finnegan.com
`cory.bell@finnegan.com
`
`Michael Gannon
`Leif Sigmond
`Jennifer Kurcz
`MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`gannon@mbhb.com
`sigmond@mbhb.com
`kurcz@mbhb.com
`
`Steven F. Borsand
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`tt-patent-cbm@tradingtechnologies.com
`steve.borsand@tradingtechnologies.com
`
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`7
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