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.
`
`
`
`
`
`
`
`Paper No. ____
` Filed: August 24, 2016
`
`
`
`
`
`
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2015-00179
`U.S. Patent 7,533,056
`_________________
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS
`MOTION TO SUBMIT SUPPLEMENTAL INFORMATION AND
`BRIEFING UNDER 37 C.F.R. § 42.223(b)
`
`
`
`
`
`
`__________________
`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.
`
`
`
`
`
`
`
`Paper No. ____
` Filed: August 24, 2016
`
`
`
`
`
`
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2015-00179
`U.S. Patent 7,533,056
`_________________
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS
`MOTION TO SUBMIT SUPPLEMENTAL INFORMATION AND
`BRIEFING UNDER 37 C.F.R. § 42.223(b)
`
`
`
`
`
`
`
`Case CBM2015-00179
`U.S. Patent 7,533,056
`Petitioners’ opposition makes clear that they erected their objections to TT’s
`
`
`
`use of the requested information under the district court PO simply as a roadblock.
`
`Rewarding such tactics would not serve the interests of justice. Instead, the
`
`interests of justice support allowing TT to submit these documents and briefing
`
`because the information supports TT’s positions on patent eligibility and
`
`nonobviousness, and is the most credible evidence from Petitioners.
`
`I.
`
`TT Was Not In A Position To Submit The Information Earlier
`
`TT was in no position to use this information before June 2016. TT did not
`
`have most of the information (6/8/16 and 6/9/16 Bartleman transcripts, 6/13/16
`
`Galik Transcript, Exhibit 2158) before May/June of 2016. These documents were
`
`produced as a direct result of the district court’s order that certain discovery be
`
`completed for potential use in the PTAB. Ex. 2142.
`
`The three documents TT’s litigation counsel received at the end of 2015,
`
`(Exhibits 2143-2145) were produced by TS within over a hundred thousand pages
`
`of documents in the November/December 2015 time frame, which took months to
`
`cull to the relevant documents. Regardless, these documents were not authenticated
`
`until the depositions in June of 2016. And TT had no testimony on any of them,
`
`including PDX 3043 (TT webpage) until the June depositions.
`
`Thus, TT could not have gone to the district court with a list of what it
`
`sought to use in its Patent Owners Response (“POR”) until mid-June, when TT did
`
`
`
`1
`
`
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`Case CBM2015-00179
`U.S. Patent 7,533,056
`just that. TT indeed withdrew its district court motion after Petitioners offered to
`
`“moot” it, but there was no obligation by TT to proceed on the same issue in two
`
`forums simultaneously (or in the district court first), and Petitioners’ “contrary”
`
`cases do not establish otherwise. For instance, the dispute in Meyer was whether
`
`Patent Owners’ could file a motion for additional discovery without violating the
`
`PO (absent Petitioners’ consent to discuss the documents therein, which TT had
`
`here). Likewise, both Daifuku and Electronic Frontier addressed whether litigation
`
`counsel could disclose confidential information to PTAB counsel under the
`
`litigation PO. Here, TT has always shared at least one litigation and PTAB counsel
`
`(Mr. Borsand) and thus there have never been such issues. Further, these non-
`
`precedential decisions contrast with other panels’ holdings that a district court PO
`
`does not bar the PTAB from ordering production. Cf. Chevron N. America, Inc. v.
`
`Milwaukee Elec. Tool Corp., IPR 2015-00595, Paper 31, at 4 (Oct. 30, 2015);
`
`Brunswick Corp. v. Cobalt Boats, LLC, IPR2015-01060, Paper 20 (Dec. 28, 2015).
`
`Petitioners’ opposition still provides no basis for their objections, but notes
`
`that they “reasonably exercised their right” under the PO.” Paper 104, at 4. This
`
`shows that Petitioners have never been concerned about any alleged sensitivity of
`
`the information, but needlessly blocked TT’s use to gain a strategic advantage. The
`
`record demonstrates TT’s diligent efforts to try to resolve the dispute without
`
`burdening this Board or the district court. For example, TT requested that TS
`
`
`
`2
`
`
`
`Case CBM2015-00179
`U.S. Patent 7,533,056
`approve of TT’s reliance on Exhibit 2144 (Matrix Requirements) on May 26, 2016,
`
`but TS refused to evaluate the request or confer until weeks later at the Bartleman
`
`depositions. Ex. 2397. On June 3, TT also sent a list of specific documents it
`
`sought to use (see Ex. 2399) and elaborated on how it would use the documents on
`
`June 8 (Ex. 2400). TT could not have relied on the information in this proceeding
`
`until the PO objections were resolved, which they now are.
`
`II. The Interests Of Justice Support That TT Be Able To Submit This
`Information and Supplemental Briefing
`
`The interests of justice dictate that this information be submitted and briefed
`
`as it strongly supports nonobviousness and patent eligibility. While Petitioners
`
`argue that it is disputed whether MD_Trader embodies the claimed invention, this
`
`is not the case. Likewise, Petitioners’ argument that TT is changing its theory
`
`midstream by arguing that Matrix and Booktrader are commercial embodiments of
`
`the claimed inventions similarly fails. Instead, the evidence shows that the claimed
`
`features were unconventional as evidenced by TS and IB’s late adoption of the
`
`claimed features at request of customers.
`
`There is no prejudice or burden to Petitioners. TT’s proposed supplemental
`
`arguments do not take Petitioners by surprise: TT extensively identified relevant
`
`portions of the information along with its argument.
`
`
`
`
`
`
`
`3
`
`
`
`Case CBM2015-00179
`U.S. Patent 7,533,056
`A. Bartleman Transcripts, Exhibits 2144 and PDX 3043
`
`Mr. Bartleman’s testimony as TS’s CEO and former head of Product
`
`Management for the Matrix product contradicts Petitioners’ position that the
`
`claimed invention is not technological, but abstract. Further, when Bartleman’s
`
`testimony, Exhibit 2144, PDX 3043, and Mr. Thomas’ declaration are evaluated as
`
`a whole, they show that the claimed features went against the conventional
`
`wisdom at the time of the invention.
`
`B. Exhibits 2143 and 2145
`
`TT did not quote from these exhibits due to the Board’s order. However,
`
`Exhibit 2145 touts the claimed features and resulting benefits, supports that the
`
`GUIs involved are technological, and thus supports TT’s position that the claims
`
`are deeply rooted in technology and thus not abstract.
`
`Exhibit 2143 is an interview TS gave (not Mr. Bartleman, although he
`
`signed off on the content as being accurate from a technical perspective),
`
`whichshows that Matrix has become the
`
`.
`
`C. Exhibits 2154 and 2158 (Interactive Brokers)
`
`Petitioners claim that Exhibit 2154 is untethered to any legal theory is false.
`
`TT’s motion identifies that this exhibit will be used to rebut Petitioners’ argument
`
`that electronic trading screens are purely aesthetic. Petitioners have proffered this
`
`claim in support of their argument that TT’s claims are not patent eligible. TT
`
`
`
`4
`
`
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`Case CBM2015-00179
`U.S. Patent 7,533,056
`should be allowed to rebut those claims with evidence directly from Petitioners
`
`that shows that these claims are inconsistent with Petitioners own words outside of
`
`the CBM proceedings, as set forth in TT’s POR. Likewise, Exhibit 2158 supports
`
`that the claimed GUIs are not abstract, but technological in nature as even IB’s
`
`CEO defined aesthetics in terms of the fonts and colors of GUIs, not their overall
`
`structure and makeup.
`
`For the reasons set forth above, this Board should grant TT’s motion.
`
`Respectfully Submitted,
`
`By: /Rachel L. Emsley/
`Rachel L. Emsley, Reg. No. 63,558
`
`
`
`
`
`Date: August 24, 2016
`
`
`
`5
`
`
`
`CERTIFICATE OF SERVICE
`
`Case CBM2015-00179
`U.S. Patent 7,533,056
`
`The undersigned hereby certifies that a copy of the foregoing PATENT
`
`OWNER’S REPLY IN SUPPORT OF ITS MOTION TO SUBMIT
`
`SUPPLEMENTAL INFORMATION AND BRIEFING UNDER 37 C.F.R. §
`
`42.223(b) was served on August 24, 2016, via email directed to the following
`
`counsel of record for the Petitioner:
`
`Robert Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori Gordon
`lgordon-PTAB@skgf.com
`
`Richard Bemben
`rbemben-PTAB@skgf.com
`
`John C. Phillips
`CBM41919-0007CP1@fr.com
`
`PTAB@skgf.com
`
`
`
`Date: August 24, 2016
`
`
`
`
`
`
`
`
`
`
`
`/Valencia Daniel/
`Valencia Daniel
`Litigation Legal Assistant
`
`
`
`
`
`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
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