Paper No. ____
` Filed: October 14, 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.
`
`Petitioners
`v.
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` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2015-00179
`U.S. Patent 7,533,056
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`REPLY IN SUPPORT OF PATENT OWNER’S MOTION TO
` EXCLUDE UNDER 37 C.F.R. 42.64(C)
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` Filed: October 14, 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.
`
`Petitioners
`v.
`
`
`
`
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2015-00179
`U.S. Patent 7,533,056
`
`
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`
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`
`REPLY IN SUPPORT OF PATENT OWNER’S MOTION TO
` EXCLUDE UNDER 37 C.F.R. 42.64(C)
`
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`TABLE OF CONTENTS
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`I. TSE has not been authenticated under FRE 901. ............................................ 1
`A. TT does not concede that the 2005 Kawashima deposition
`transcript is admissible. ................................................................................... 1
`B. Whether or not the 2005 Kawashima deposition transcript is
`excluded, Petitioners have not authenticated TSE. ....................................... 3
`i. The 2005 Kawashima deposition transcript does not authenticate
`TSE.
` ....................................................................................................... 3
`ii. TSE is not authenticated under FRE 902(11) or 901(b)(4). .......... 4
`iii. Petitioner’s supplemental evidence does not authenticate TSE. ... 4
`iv. The 2016 Kawashima deposition transcript does not cure the
`authentication issues with TSE. ................................................................... 4
`II. Expert Testimony ................................................................................................ 5
`
`
`
`
`
`ii
`
`
`
`I.
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`
`TSE has not been authenticated under FRE 901.
`A. TT does not concede that the 2005 Kawashima deposition transcript
`is admissible.
`
`TT’s evidence from district court litigation and the 2005 Kawashima
`
`deposition transcript should stand or fall together based on mutual hearsay
`
`objections. Indeed, as stated in TT’s motion, “[t]o the extent the Board excludes
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`any of Patent Owner’s evidence from district court litigation, which it should not,
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`the Board should likewise exclude the 2005 Kawashima transcript.” Paper 114 at
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`6.
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`The Board must treat Patent Owner’s district court evidence and the 2005
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`Kawashima transcript in the same way because they differ only in that Patent
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`Owner exerted greater efforts to obtain better evidence than Petitioners. To the
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`extent this difference impacts the admissibility of the evidence, it favors admitting
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`Patent Owner’s evidence, not the 2005 Kawashima transcript. Qualification for the
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`residual exception to hearsay requires that evidence be more probative on the point
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`for which it is offered than any other evidence that the proponent can obtain
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`through reasonable efforts. FRE 807. While Patent Owner exerted significant
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`efforts to obtain better evidence, Petitioners did not. Accordingly, based on this
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`difference, to the extent the 2005 Kawashima transcript is treated differently from
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`Patent Owner’s evidence from district court, the 2005 Kawashima transcript, not
`
`1
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`
`
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`Patent Owner’s evidence from district court, should be excluded.
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`Rather than identifying any other differences between the 2005 Kawashima
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`transcript and Patent Owner’s evidence from district court, Petitioners argue that
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`Mr. Kawashima’s cross-examination in this proceeding resolves any hearsay
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`concern. This does not differentiate the Kawashima 2005 deposition transcript
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`from Patent Owner’s evidence from district court. Petitioners could have likewise
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`deposed the witnesses on which Patent Owner relies in this proceeding but simply
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`chose not to do so. The Board’s recent Final Written Decision in Apple Inc. v.
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`VirnetX Inc. is instructive. IPR2015-00811, Paper 44 at 68-70 (Sep. 8, 2016). In
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`the Apple case, the Board pointed out that the party challenging the admissibility of
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`evidence “chose not to seek the opportunity to cross examine the declaration
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`testimony,” which the Board had defined to include district court trial and
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`deposition testimony, before explaining why the residual exception of Federal Rule
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`of Evidence 807 nevertheless rendered everything admissible. Id. at 68-70. The
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`Board thus recognized that whether or not a party actually cross-examines a
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`witness in the proceeding is irrelevant to whether other testimony not from the
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`proceeding is hearsay. See id.
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`Unable to articulate any difference between the 2005 Kawashima transcript
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`and Patent Owner’s evidence from district court, Petitioners avoid the issue by
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`instead discussing burdens of proof. Paper 118 at 3. Given that there are no
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`2
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`
`
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`differences between the 2005 Kawashima transcript and Patent Owner’s evidence
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`CBM2015-00179
`U.S. Patent 7,533,056
`
`from district court that would favor admitting the 2005 Kawashima transcript but
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`not Patent Owner’s district court evidence, Petitioners cannot meet their burden to
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`have Patent Owner’s evidence from district court excluded without also
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`demonstrating that the 2005 Kawashima transcript must be excluded. Accordingly,
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`to the extent the Board excludes any of Patent Owner’s evidence from district court
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`litigation, which it should not, the Board should likewise exclude the 2005
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`Kawashima transcript.
`
`B. Whether or not the 2005 Kawashima deposition transcript is
`excluded, Petitioners have not authenticated TSE.
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`Nothing in the record proves that Exhibit 1003 (“TSE”) is the specific
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`document that Petitioners assert was “published in August of 1998 by giving two
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`copies to each of the about 200 participants in the Tokyo Stock Exchange” and not
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`some other TSE document. See Paper 9 at 21.
`
`i.
`
`The 2005 Kawashima deposition transcript does not
`authenticate TSE.
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`As explained in TT’s motion, the 2005 Kawashima transcript raises more
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`doubt that it resolves. Citing Rosenberg v. Collins, Petitioners argue that TT’s
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`criticism of the way Mr. Kawashima verified his identification of the TSE manual
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`does not cut against authenticity in a way supported by law, but Rosenberg relates
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`to the business record hearsay exception of FRE 803(6), not to whether the
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`3
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`document is the particular document allegedly “giv[en]” to “participants in the
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`CBM2015-00179
`U.S. Patent 7,533,056
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`Tokyo Stock Exchange.” See 624 F.2d 659, 665 (5th Cir.1980). Paper 118 at 5-6.
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`Accordingly, it has no bearing on whether Mr. Kawashima ever authenticated any
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`document as being the one allegedly “giv[en]” to the participants.
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`TSE is not authenticated under FRE 902(11) or 901(b)(4).
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`ii.
`Whether or not TSE is a business record or appears to be an authentic TSE
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`document, nothing establishes that it is the document allegedly “giv[en]” to
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`“participants in the Tokyo Stock Exchange.” Accordingly, it is not self-
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`authenticated in any way that can establish it is prior art in this proceeding.
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`Petitioner’s supplemental evidence does not authenticate TSE.
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`iii.
`Whether or not TSE is in the file history of a U.S. patent has nothing to do
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`with whether it is the document allegedly “giv[en]” to “participants in the Tokyo
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`Stock Exchange.” Moreover, “mere submission of an IDS to the USPTO does not
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`constitute the patent applicant's admission that any reference in the IDS is material
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`prior art.” Abbott Labs. v. Baxter Pharm. Prod., Inc., 334 F.3d 1274, 1279 (Fed.
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`Cir. 2003). Petitioner’s evidence “that a party offered the same document [as
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`Petitioners] in a related district court action” is also irrelevant to whether it is the
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`document allegedly “giv[en]” to “participants in the Tokyo Stock Exchange.”
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`iv.
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`The 2016 Kawashima deposition transcript does not cure the
`authentication issues with TSE.
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`As an initial matter, Petitioners submit and rely upon new evidence in the
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`4
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`form of Japanese language exhibits (Ex. 1062-1065) purportedly from Mr.
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`CBM2015-00179
`U.S. Patent 7,533,056
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`Kawashima’s 2016 deposition. Paper 118 at 9. These exhibits were not filed with
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`English translations, so they are inadmissible under 37 CFR 42.63(b). In any case,
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`the 2016 deposition transcript does not include testimony putting to rest the
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`deficiencies of the 2005 deposition. Instead, it once again suggests that Mr.
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`Kawashima could not have examined the document in a way that would have
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`differentiated it from any other version. Ex. 2163 at 45-46.
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`As explained in TT’s motion, the 2016 deposition transcript also proves Mr.
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`Kawashima’s bias. Paper 114 at 8. Petitioners argue that any alleged bias goes to
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`the weight of the testimony, not to its admissibility. Paper 118 at 9-10. TT agrees.
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`Mr. Kawashima’s bias goes to the weight that his testimony should be given. Mr.
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`Kawashima’s testimony should be given no weight, so it cannot authenticate TSE.
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`II. Expert Testimony
`As pointed out in TT’s motion, its experts’ answers to certain vague and
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`ambiguous questions yielded irrelevant testimony that Petitioners are using in a
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`confusing and misleading manner. Nothing in Petitioners’ opposition changes that.
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`
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`Respectfully Submitted,
`
`Date: October 14, 2016
`
`By:
`
`/Joshua L. Goldberg/ (Reg. No. 59,369)
`
`5
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`CERTIFICATE OF SERVICE
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`The undersigned hereby certifies that a copy of the foregoing REPLY IN
`
`SUPPORT OF PATENT OWNER’S MOTION TO EXCLUDE UNDER 37
`
`C.F.R. 42.64(C) was served on October 14, 2016, via email directed to counsel of
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`record for the Petitioners at the following:
`
`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori Gordon
`lgordon-PTAB@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`John C. Phillips
`CBM41919-0007CP1@fr.com
`
`PTAB@skgf.com
`
`
`Dated: October 14, 2016
`
`/Lisa C. Hines/
`Lisa C. Hines
`Litigation Clerk
`
`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
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