`
`
`
`
`
`
`
`
`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 CBM2015-001721
`Patent No. 7,783,556
`_____________________
`
`PETITIONERS’ OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE UNDER 37 C.F.R. 42.64(C)
`
`
`1 Case CBM2016-00040 has been joined with this proceeding.
`
`
`
`
`
`Case CBM2015-00172
`Attorney Docket No. 41919-0002CP1
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`INTRODUCTION ........................................................................................... 1
`
`FEDERAL RULES OF EVIDENCE 403 ....................................................... 1
`
`III. CONCLUSION ................................................................................................ 3
`
`
`
`
`i
`
`
`
`Case CBM2015-00172
`Attorney Docket No. 41919-0002CP1
`
`I.
`
`INTRODUCTION
`
`Patent Owner Trading Technologies International, Inc. (“TT”) urges the
`
`Board to exclude a portion of one deposition transcript involving TT’s declarant Dan
`
`Olsen (Ex. 1018, 57-58). TT’s argument can be summed up as seeking to exclude
`
`unfavorable testimony and otherwise using this Motion to Exclude as an unauthor-
`
`ized sur-reply to argue the merits of whether “the claimed inventions do not improve
`
`computers.” (Paper 65 at 2.)
`
`II.
`
`FEDERAL RULES OF EVIDENCE 403
`
`Fed. R. Evid. 403 provides that evidence may be excluded if its probative
`
`value is substantially outweighed by the danger of unfair prejudice, confusing the
`
`issues, misleading the fact-finder, undue delay, wasting time, and/or presenting
`
`needlessly cumulative evidence. Here, the material sought to be excluded consists
`
`of factually true admissions explaining how the claims are not directed to various
`
`technological improvements. These admissions are highly probative of patent eligi-
`
`bility. In turn, TT appears to rely on the “unfair prejudice,” “confusing” and “mis-
`
`leading” aspects of Fed. R. Evid. 403. But there is simply no danger of confusing or
`
`misleading the Board. The Board is perfectly capable of according these admissions
`
`appropriate weight in view of all the evidence. And TT has failed to demonstrate
`
`even a remote likelihood that the statements will be misinterpreted or misunderstood.
`
`TT may disagree with the legal conclusions to be drawn from these admissions;
`
`1
`
`
`
`however, that is not a cognizable basis for excluding evidence.
`
`Case CBM2015-00172
`Attorney Docket No. 41919-0002CP1
`
`
`TT has exhausted its opportunities to brief the merits and rehabilitate its ex-
`
`perts with explanations such as “[r]ather than admitting the claimed inventions do
`
`not improve computers, Mr. Olsen was simply stating what was not explicitly recited
`
`by the claims.” (Paper 65 at 3.) This argument has nothing to do with balancing
`
`probative value and unfair prejudice under Fed. R. Evid. 403; it is an improper at-
`
`tempt to explain away highly probative admissions.
`
`And, as a general policy, it is not unfairly prejudicial to place the burden of
`
`seeking clarification on the testifying expert. In fact, this has long been the Board’s
`
`practice.2 Here, counsel for Petitioner properly instructed the witness. (See, e.g.,
`
`
`2 Cf. U.S. PATENT & TRADEMARK OFFICE, Standing Order of Jan. 3, 2006 Governing
`
`Contested Cases Assigned to Trial Division, Board of Patent Appeals and Interfer-
`
`ences, Cross Examination Guidelines, Appendix, p. 71 (Jan. 2006), available
`
`https://www.uspto.gov/web/offices/dcom/bpai/Standing-Order.pdf (“Guideline [1]
`
`At the beginning of a cross examination, the party conducting the cross examination
`
`must instruct the witness on the record to ask deposing counsel, rather than the wit-
`
`ness’s own counsel, for clarifications, definitions or explanations of any words,
`
`questions or documents presented during the cross examination. The witness must
`
`2
`
`
`
`Case CBM2015-00172
`Attorney Docket No. 41919-0002CP1
`
`CBM2015-00179 Ex. 1059, Olsen Dep. Tr., 6:9-17.) Having been instructed, and
`
`free to seek clarification as needed, the answers provided are in accordance with the
`
`ground rules for cross-examination. TT’s attempt to erase truthful, albeit unfavora-
`
`ble, responses given by its experts should be denied.
`
`III. CONCLUSION
`
`For the above reasons, Patent Owner’s Motion to Exclude should be denied.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: October 7, 2016
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/John C. Phillips/
`John C. Phillips, Reg. No. 35,322
`Attorney for Petitioners
`
`
`follow these instructions.”) See also Hall v. Clifton Precision, 150 F.R.D. 525 (E.D.
`
`Pa. 1993) (serving as the model for the Standing Order).
`
`3
`
`
`
`Case CBM2015-00172
`Attorney Docket No. 41919-0002CP1
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 CFR §§ 42.6(e)(4) and 42.205(b), the undersigned certifies
`
`that on October 7, 2016, a complete and entire copy of this Petitioners’ Opposition
`
`to Patent Owner’s Motion to Exclude was provided via email to the Patent Owner
`
`by serving the correspondence address of record as follows:
`
`Erika H. Arner, Joshua L. Goldberg, Kevin D. Rodkey,
`Rachel L. Emsley, and Cory C. Bell
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`Email: erika.arner@finnegan.com
`joshua.goldberg@finnegan.com
`kevin.rodkey@finnegan.com
`rachel.emsley@finnegan.com
`cory.bell@finnegan.com
`
`Steven F. Borsand
`Trading Technologies International, Inc.
`Email: tt-patent-cbm@tradingtechnologies.com
`
`
`Michael D. Gannon, Leif R. Sigmond, Jr., and Jennifer M. Kurcz
`McDonnell Boehnen Hulbert & Berghoff LLP
`Email: gannon@mbhb.com
`sigmond@mbhb.com
`kurcz@mbhb.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/Diana Bradley/
`
`Diana Bradley
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(858) 678-5667
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
