`
`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.
`
`Petitioners
`
`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_____________
`
`Case CBM2015–00179
`Patent 7,533,056
`_____________
`
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`PETITIONERS’ MOTION TO EXCLUDE
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313–1450
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`TABLE OF CONTENTS
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`Case CBM2015-00179
`Patent 7,533,056
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`I.
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`Introduction ......................................................................................................... 2
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`II. Argument ............................................................................................................. 3
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`A. Deposition Transcript of Thomas Biddulph: Exhibit 2327 ............................. 3
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`B. eSpeed Jury Verdict Form & Docket Entry: Exhibits 2030, 2032 .................. 5
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`C. Design Document: Exhibit 2301 ..................................................................... 6
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`D. Third Party Emails: Exhibits 2300, 2304–2316, 2318–2324, 2326, and
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`2328–2329 ....................................................................................................... 6
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`III. Conclusion ........................................................................................................... 8
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`Case CBM2015-00179
`Patent 7,533,056
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`I.
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`Introduction
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`Petitioners file this motion pursuant to 37 C.F.R. § 42.64(c) and in
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`accordance with modified Due Date 4. (Paper 54.) The Board should exclude
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`Patent Owner Trading Technologies International, Inc.’s (“TT”) Exhibits 2327,
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`2030 and 2032 because these documents are either irrelevant and/or constitute
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`hearsay to which no exception applies.
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`The first exhibit addressed in this motion is Exhibit 2327, which contains
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`excerpts of a deposition of a third party Thomas Biddulph. The deposition occurred
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`during one of TT’s district court cases. Although TT does not cite Exhibit 2037 in
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`its Patent Owner’s Response, named inventors Mr. Richard Friesen and Mr. Peter
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`Hart impermissibly use the Biddulph declaration to “corroborate” their alleged
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`reduction to practice. Even if the 2011 deposition of Mr. Biddulph could
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`corroborate a 1998 reduction to practice (which it cannot), there is no exception to
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`the hearsay rule that applies.
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`The next two exhibits addressed are the jury verdict form and a related
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`docket entry from a district court case, Exhibits 2030 and 2032, respectively. TT
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`relies upon this evidence to support its contention that the TSE reference is not
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`prior art. Apart from the fact that the outcome of a district court case has no
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`bearing on the proceeding before the Board, both documents are also hearsay to
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`which no exception applies.
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`Case CBM2015-00179
`Patent 7,533,056
`The next exhibit is Exhibit 2301, which purports to be a design document of
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`a certain electronic trading system. Petitioners challenged the authenticity of
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`Exhibit 2301 in its Response (Paper 110 at 17–18), and timely objected to this
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`exhibit on that basis and others. (Paper 80 at 7–9.) TT has made no attempt at
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`curing the authentication defect and there is no way of knowing whether the
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`exhibit is what it purports to be.
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`Lastly, Petitioners address Exhibits 2300, 2304–2316, 2318–2324, 2326,
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`2328–2329. These 22 third party emails are each lacking authenticity and are
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`hearsay to which no exception applies.
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`TT knows that its evidence suffers from significant admissibility problems.
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`Indeed, it preemptively sought a blanket waiver from the Board so that TT could
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`ignore those requirements. (See Paper 8 in CBM2015-00182 at 1-2.) The Board
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`denied TT’s request. (Id.) Having been denied permission to do so, TT proceeded
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`to file its exhibits without regard to the Federal Rules. For the reasons set forth
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`below, this evidence should be stricken.
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`II. Argument
`A. Deposition Transcript of Thomas Biddulph: Exhibit 2327
`The Board should exclude Exhibit 2327 (“Biddulph Transcript”) because it
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`is hearsay to which no exception applies. The Biddulph Transcript purports to be a
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`seven page excerpt from an earlier proceeding involving third parties accused of
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`Case CBM2015-00179
`Patent 7,533,056
`infringement by TT. Petitioners timely objected to the Biddulph Transcript
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`(Exhibit 2327) on the basis of, among other things, hearsay. (Paper 80 at 17–19.)
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`The Biddulph Transcript (Exhibit 2327) is not directly relied upon in TT’s
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`Patent Owner Response. (See Paper 83 at 11.) Instead, TT uses this document in an
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`extraordinary effort to corroborate the testimony of two inventors Mr. Richard
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`Friesen and Mr. Peter Hart. See Ex. 2167 at 20–28, ¶¶ 34–36 (Friesen); Ex. 2181 at
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`18–25, ¶¶ 34–36 (Hart). Friesen and Hart cite to the Biddulph Transcript to support
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`their otherwise uncorroborated assertion’s concerning actual reduction to practice.
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`See Ex. 2167 at 20–28, ¶¶ 34–36 (Friesen); Ex. 2181 at 18–25, ¶¶ 34–36 (Hart).
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`Although neither Freisen nor Hart attended the Biddulph deposition, both offer
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`summaries of what transpired at that deposition based on their after-the-fact review
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`of the deposition transcript. See Ex.1054, Friesen Dep. Tr. at 57:3-5; Ex. 1055,
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`Hart Dep. Tr. at 55:1-3. Although upon cross-examination, Mr. Friesen admitted
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`he never even reviewed the Biddulph Transcript. See Ex. 1054, Friesen Dep. Tr. at
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`62:21-63:3; 68:18-69:4. And Mr. Hart admitted he only reviewed the “clips” of the
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`deposition. Ex. 1055, Hart Dep. Tr. at 55:4-10, 56:4-7.
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`The Biddulph Transcript is categorical hearsay. See FRE 801. Mr.
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`Biddulph’s statements were not made while testifying for the current proceeding
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`and all are being offered for the truth of the matters asserted—i.e. that the software
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`discussed therein is a commercial embodiment of the claims. None of these
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`Case CBM2015-00179
`Patent 7,533,056
`statements fall under any proper hearsay exception. For example, TT has not
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`shown that Mr. Biddulph is unavailable. See FRE 804. Nor has TT shown that any
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`specific exception under FRE 803 applies to this case. Nor can TT credibly argue
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`that there are any extraordinary circumstances such that the residual exception
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`should apply. See FRE 807; see also, e.g., Conoco Inc. v. Dep’t of Energy, 99 F.3d
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`387, 392 (Fed. Cir. 1996) (“The two residual hearsay exceptions . . . were meant to
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`be reserved for exceptional cases.”). Accordingly, the Board should exclude
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`Exhibit 2327.
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`B.
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`eSpeed Jury Verdict Form & Docket Entry: Exhibits 2030, 2032
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`The Board should exclude Exhibits 2030 and 2032, which purport to be a
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`jury verdict and docket entry, respectively, associated with Trading Technologies
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`Int’l, Inc. v. eSpeed, Inc., No. 04-cv-05312. Neither the jury’s findings nor the
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`district court’s decision are probative of any issue before the Board. Accordingly,
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`this evidence is irrelevant and inadmissible. See FRE 401.
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`TT offered Exhibit 2030 as evidence that the “TSE” reference does not
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`qualify as prior art. (See Paper 21 at 62; Paper 81 at 39 n.5.) It offers Exhibit 2032
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`for the same purpose. Petitioners timely objected to Exhibits 2030 and 2032 on the
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`basis of, among other things, lack of relevance and hearsay. (Paper 28 at 17–19.)
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`The fact that the eSpeed jury found that a third party defendant did not meet
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`its burden of proving the patent obvious under the clear and convincing evidence
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`Case CBM2015-00179
`Patent 7,533,056
`standard is not relevant to whether Petitioners have met their burden of
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`demonstrating the ’056 patent to be unpatentable under the preponderance of the
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`evidence standard. Nor are these documents relevant to whether the ’056 patent
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`claims eligible subject matter under 35 U.S.C. § 101. Accordingly, Exhibits 2030
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`and 2032 should be excluded as irrelevant. See FRE 401.
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`C. Design Document: Exhibit 2301
`The Board should exclude the design document for lack of authenticity.
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`Exhibit 2301 is a document titled “Trading Game Design Document” and is cited
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`in TT’s POR at page 45. TT has annotated Exhibit 2301, and it offers the exhibit as
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`purported evidence of conception. See id. Petitioners timely objected to the design
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`document. (Paper 80 at 8; see also Paper 110 at 17–18.)
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`Rule 901 requires that evidence be supported by sufficient evidence to
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`demonstrate that an item is what the proponent purports it to be. In the case of
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`Exhibit 2301, TT has offered no such evidence. As a consequence, this exhibit
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`should be excluded from the record on that basis.
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`D. Third Party Emails: Exhibits 2300, 2304–2316, 2318–2324, 2326, and
`2328–2329
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`The Board should exclude Exhibits 2300, 2304–2316, 2318–2324, 2326, and
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`2328–2329 each (the “Third Party Emails”) for lack of authenticity and because
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`they are hearsay to which no exception applies. The Third Party Emails are cited in
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`both TT’s POR and the Friesen and Hart declarations. And TT, Mr. Friesen, and
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`Case CBM2015-00179
`Patent 7,533,056
`Mr. Hart all use them here to support their assertions regarding alleged diligence.
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`(See e.g., Paper 81 at 51–54; Ex. 2167, ¶¶ 17, 24, 30, 33; Ex. 2181, ¶¶ 16, 23, 27.)
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`Petitioners timely objected to these emails on the basis of, among other things,
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`authenticity and hearsay. (Ex. 80 at 7–8.)
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`At the outset, the Board should exclude Third Party Email Exhibits for lack
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`of authentication because TT has offered no evidence that each exhibit is what it
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`purports to be. See FRE 901. In fact, TT chose to forego filing any supplemental
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`evidence to cure Petitioners’ authenticity objections to these exhibits. Accordingly,
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`the Third Party Emails should be excluded for lack of authenticity.
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`Each of the Third Party Emails also constitutes hearsay as all are being
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`offered for the truth of the matters asserted. See FRE 801. TT has not suggested
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`that there is a non-hearsay purpose for any of the Third Party Emails. See, e.g.,
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`FRE 801(d). Nor has TT shown that the witnesses whose statements it relies upon
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`are unavailable. See FRE 804. It also has not shown that any specific exception
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`under FRE 803 or the residual exception under FRE 807 applies. Indeed, TT
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`cannot credibly argue that the Third Party Emails have equivalent circumstantial
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`guarantees of trustworthiness or that the other elements of FRE 807 are met such
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`that the Board should consider this is an “exceptional case.” See, e.g., Conoco Inc.,
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`99 F.3d at 392. Accordingly, the Board should exclude Exhibits 2300, 2304–2316,
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`2318–2324, 2326, and 2328–2329 as hearsay.
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`Case CBM2015-00179
`Patent 7,533,056
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`III. Conclusion
`For the reasons set forth above, the Board should exclude Exhibits 2030,
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`2032, 2300, 2301, 2304–2316, 2318–2324, 2326, 2327, and 2328–2329.
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`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`
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`
`
`/Robert E. Sokohl/
`
`
`
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`Date: September 23, 2016
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
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`Case CBM2015-00179
`Patent 7,533,056
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`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that the foregoing PETITIONERS’
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`MOTION TO EXCLUDE was served electronically via e–mail on September 23,
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`2016, in its entirety on Attorneys for Patent Owner:
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`Erika H. Arner, Joshua L. Goldberg, Kevin D. Rodkey,
`Rachel L. Emsley, Cory C. Bell
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`
`Erika.arner@finnegan.com
`Joshua.goldberg@finnegan.com
`Kevin.rodkey@finnegan.com
`Rachel.emsley@finnegan.com
`Cory.bell@finnegan.com
`Trading–Tech–CBM@finnegan.com
`
`Steven F. Borsand
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`tt–patent–cbm@tradingtechnologies.com
`
`Michael D. Gannon, Leif R. Sigmond, Jr., and Jennifer M. Kurez
`MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`gannon@mbhb.com
`sigmond@mbhb.com
`kurcz@mbhb.com
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`
`
`
` /Robert E. Sokohl/
`
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
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`
`
`
`
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`Date: September 23, 2016
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
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