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`Paper No. _____
`Filed: October 11, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`IBG LLC, INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., TRADESTATION
`SECURITIES, INC., TRADESTATION
`TECHNOLOGIES, INC., and IBFX, INC.,
`Petitioners,
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
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`Case CBM2015-001721
`Patent No. 7,783,556
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`PATENT OWNER’S MOTION TO MAINTAIN CONFIDENTIAL
`INFORMATION UNDER SEAL PENDING DISPOSITION OF APPEAL
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`1 Case CBM2016-00040 has been joined with this proceeding.
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`I.
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`Case CBM2015-00172
`Patent No. 7,783,556
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`Statement of Relief Requested
`Pursuant to this Board’s authorization on October 11, 2017, Trading
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`Technologies International, Inc. (“TT” or “Patent Owner”), respectfully requests
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`that all sealed documents in CBM2015-00172 be preserved in non-public form
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`pending disposition of any appeals. Moreover, within 10 days of the disposition of
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`all appeals in this matter, Patent Owner respectfully requests that all confidential
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`information filed by Patent Owner be expunged from the record pursuant to Rule
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`42.56 and not be made public.
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`Patent Owner has conferred with Petitioner on both requests and Petitioner
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`does not oppose.
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`II. Reasons Why Requested Relief Should Be Granted
`A. The Record Should be Preserved Pending Appeal So the
`Federal Circuit Has Full Access to the Record
`The Federal Rules of Appellate Procedure and the Federal Circuit Rules
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`require that the record be retained by the Board pending appeal. Specifically,
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`Federal Circuit Rule 17(a) states that “[t]he agency must retain the record.”
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`Federal Circuit Rule 17(d), titled “Access of Parties and Counsel to Original
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`Record” also requires that the parties and their counsel have access to both the
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`sealed and unsealed portions of the record “[w]hen a petition for review or notice
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`of appeal is filed.” Patent Owner’s Notice of Appeal was filed July 19, 2017.
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`If the record is not preserved in its entirety, including any sealed portions,
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`Case CBM2015-00172
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`and an appeal is taken, the Federal Circuit will not be able to fully consider the
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`issues, which would cause prejudice to Patent Owner and violate the appellate
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`rules. Moreover, as the Board did not rely on any of this confidential information
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`in its final written decision or decision denying rehearing, such information may
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`properly be maintained under seal here. (See Paper 84, at 2).
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`B.
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`Subsequent to the Disposition of Appeal, Confidential
`Information Should be Expunged
`Additionally, Patent Owner respectfully requests that subsequent to the
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`dispositions of all appeals, all sealed confidential information filed on the CBM
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`docket be expunged for the reasons set forth below.
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`1.
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`The Board Found Good Cause to Seal the
`Confidential Information
`In connection with its Motion for Additional Discovery, TT filed a Motion
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`to Seal. (Paper 33). This motion covered certain documents and exhibits
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`containing or referring to confidential business information. (Paper 34 and
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`Exhibits 2143-51, 2154, and 2156-58).
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`On March 31, 2017, the Board granted TT’s Motion to Seal. (Paper 84).
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`The information covered by the granted Motion to Seal should be maintained
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`under seal because this Board has already found that there was good cause to grant
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`the motion to seal. (Paper 84, at 2). Specifically, TT identified that the sealed
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`3
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`papers contain sensitive business information that would not otherwise be
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`Case CBM2015-00172
`Patent No. 7,783,556
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`published or made available to the public. As this information was not relied on in
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`the Final Written Decision here, (see id.), protecting the confidential material
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`throughout the appeals does not impact the public interest in obtaining access to
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`these proceedings. Further, any impact to the public interest has been minimized
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`as a non-confidential version of the Motion for Additional Discovery has already
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`been filed. (Id.)
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`2.
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`The Sealed Documents Contain Confidential and
`Sensitive Business Information That was not Relied
`on by the Board in the Final Written Decision
`For the same reasons set forth in Patent Owner’s Motion to Seal, namely that
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`the sealed information “contain[s] information identified . . . as sensitive, non-
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`public information that a business would not make public,” (Paper 33, at 2), all the
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`information filed under seal in this matter should be expunged from the record
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`within 10 days of the disposition of all appeals. Expunging the sealed information
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`will avoid the prejudice to parties that would be caused by public disclosure of
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`their sealed information. The information Patent Owner seeks to have expunged
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`after the disposition of appeals is as follows: Paper 34 and Exhibits 2143-51, 2154,
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`and 2156-58.
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`Because Patent Owner has already filed a redacted version of the Motion for
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`Additional Discovery (Paper 32), expunging confidential materials after appeal
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`addresses the “public interest in maintaining a complete and understandable file
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`history for public notice purposes” while protecting the confidential and
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`proprietary information of other parties. (See 77 FED. REG. 48623). These
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`materials include:
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`[I]nternal TradeStation documents relating to its products and
`customers,
`the
`deposition
`transcripts
`of Mr. Bartleman
`(TradeStation’s President) and Mr. Galik (IB’s head of software
`development) and quotations from those documents and transcripts in
`the confidential version of the Motion for Additional Discovery.
`Patent Owner has been advised by counsel for Petitioners that this
`information has not been published or otherwise been made public.
`(Paper 33, at 4). These materials were “not relied on in the Final Written
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`Decision.” (Paper 84, at 2).
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`III. Conclusion
`Patent Owner respectfully requests that the entire CBM record be preserved
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`in its present form pending appeal, including preservation of documents filed under
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`seal in non-public form.
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`Within 10 days after disposition of any appeals, Patent Owner requests that
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`the sealed materials be expunged from the CBM docket.
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`Case CBM2015-00172
`Patent No. 7,783,556
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`Respectfully submitted,
`By: /Jennifer M. Kurcz/
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`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`BAKER & HOSTETLER LLP
`191 North Wacker Drive
`Suite 3100
`Chicago, IL 60606-1901
`312-416-6200
`jkurcz@bakerlaw.com
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`Counsel for Patent Owner
`Trading Technologies International, Inc.
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`Dated: October 11, 2017
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on October 11, 2017, a copy of the
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`foregoing PATENT OWNER’S MOTION TO MAINTAIN CONFIDENTIAL
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`INFORMATION UNDER SEAL PENDING DISPOSITION OF APPEAL
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`was served via e-mail on the following:
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`Robert E. Sokohl
`STERNE KESSLER GOLDSTEIN & FOX PLLC
`1100 New York Avenue, NW
`Washington, DC 20005
`Rsokohl-ptab@skgf.com
`PTAB@skgf.com
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`Adam J. Kessel
`Kevin K. Su
`FISH & RICHARDSON, PC
`One Marina Park Drive
`Boston, MA 02210
`kessel@fr.com
`su@fr.com
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`John C. Phillips
`FISH & RICHARDSON, PC
`12390 El Camino Real
`San Diego, CA 92130
`phillips@fr.com
`CBM41919-0002CP1@fr.com
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`Michael T. Rosato
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104
`mrosato@wsgr.com
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`Case CBM2015-00172
`Patent No. 7,783,556
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`Matthew A. Argenti
`WILSON SONSINI GOODRICH & ROSATI
`650 Page Mill Road
`Palo Alto, CA 94304
`margenti@wsgr.com
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`/Jennifer M. Kurcz/
`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`BAKER & HOSTETLER LLP
`191 North Wacker Drive
`Suite 3100
`Chicago, IL 60606-1901
`312-416-6200
`jkurcz@bakerlaw.com
`Counsel for Patent Owner
`Trading Technologies International, Inc.
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`2
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