CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
`
`1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
` TRADESTATION GROUP, INC., AND
` TRADESTATION SECURITIES, INC.
` PETITIONER,
` v.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` PATENT OWNER.
` __________
` Case CBM2015-00161
` Patent 6,766,304 B2
` __________
` Washington, D.C.
` Monday, November 23, 2015
` TELEPHONE CONFERENCE
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`TRADING TECH EXHIBIT 2001
`IBG ET AL. v. TRADING TECH
`CBM2015-00179
`
`Page 1 of 57
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`Conference Call
`November 23, 2015
`
`1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
` TRADESTATION GROUP, INC., AND
` TRADESTATION SECURITIES, INC.
` PETITIONER,
` v.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` PATENT OWNER.
` __________
` Case CBM2015-00161
` Patent 6,766,304 B2
` __________
` Washington, D.C.
` Monday, November 23, 2015
` TELEPHONE CONFERENCE
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`TRADING TECH EXHIBIT 2001
`IBG ET AL. v. TRADING TECH
`CBM2015-00179
`
`Page 1 of 57
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`
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
`
`2
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
` TRADESTATION GROUP, INC., AND
` TRADESTATION SECURITIES, INC.
` PETITIONER,
` v.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` PATENT OWNER.
` __________
` Case CBM2015-00172
` Patent 7,783,556
` __________
` Washington, D.C.
` Monday, November 23, 2015
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`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`Page 2 of 57
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
`
`3
`
` Telephone Conference in the
`above-entitled matter, pursuant to notice, before
`the Honorable Sally C. Medley, Meredith C.
`Petravick, and Philip J. Hoffmann, reported by SUSAN
`L. CIMINELLI, CRR, RPR, a Notary Public in and for
`the District of Columbia, commencing at 2:32 p.m.,
`when were present on behalf of the parties:
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`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`Page 3 of 57
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
`
`4
`
`APPEARANCES:
` On behalf of the Patent Owner:
` ERIKA H. ARNER, ESQUIRE
` Finnegan, Henderson, Farabow, Garrett &
` Dunner, LLP
` 11955 Freedom Drive
` Reston, Virginia 20190
` (571) 203-2754
` erika.arner@finnegan
` -and-
` RACHEL L. EMSLEY, Esquire
` Finnegan, Henderson, Farabow, Garrett &
` Dunner, LLP
` 2 Seaport Lane, 6th Floor
` Boston, Massachusetts 02210-2001
` (617) 646-1624
` rachel.emsley@finnegan.com
` -and-
` STEVEN S. BORSAND
` Trading Technologies International, Inc.
` 222 South Riverside Plaza, Suite 1100
` Chicago, Illinois 60606
` (312) 476-1018
` steve.borsand@tradingtechnologies.com
` On behalf of the Petitioners:
` JOHN C. PHILLIPS, ESQUIRE
` Fish & Richardson
` 3200 RBC Plaza
` 60 South Sixth Street
` Minneapolis, Minnesota 55402
` (858) 678-4304
` phillips@fr.com
` -and-
` ADAM J. KESSEL, ESQUIRE (Pro Hac Vice)
` Fish & Richardson
` One Marina Park Drive
` Boston, Massachusetts
` (617) 368-2180
` kessel@fr.com
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`www.hendersonlegalservices.com
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`Page 4 of 57
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
`
`5
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
` IBG LLC; INTERACTIVE BROKERS LLC;
` TRADESTATION GROUP, INC; TRADESTATION SECURITIES,
` INC.;
` IBFX, INC.; CQG, INC.; and CQGT, LLC
` PETITIONERS,
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` PATENT OWNER.
` __________
` Case CBM2015-00179
` Patent 7,533,056 B2
` __________
` Washington, D.C.
` Monday, November 23, 2015
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`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 5 of 57
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`
`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
`
`6
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
` IBG LLC, INTERACTIVE BROKERS LLC, TRADESTATION
` TECHNOLOGIES, INC., TRADESTATION GROUP, INC.,
` TRADESTATION SECURITIES, INC., AND IBFX, INC.
` PETITIONERS,
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` PATENT OWNER.
` __________
` Case CBM2015-00181
` Patent 7,676,411
` __________
` Washington, D.C.
` Monday, November 23, 2015
`
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`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 6 of 57
`
`
`
`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
`
`7
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
` IBG LLC, INTERACTIVE BROKERS LLC, TRADESTATION
` TECHNOLOGIES, INC., TRADESTATION GROUP, INC.,
` TRADESTATION SECURITIES, INC., AND IBFX, INC.
` PETITIONERS,
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` PATENT OWNER.
` __________
` Case CBM2015-00182
` Patent 6,772,132 B1
` __________
` Washington, D.C.
` Monday, November 23, 2015
`
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 7 of 57
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`
`
`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
`
`8
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
` IBG LLC, INTERACTIVE BROKERS LLC, CQG, INC.,
` and CQGT, LLC,
` PETITIONERS,
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` PATENT OWNER.
` __________
` Case CBM2016-00009
` Patent 7,685,055
` __________
` Washington, D.C.
` Monday, November 23, 2015
`
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 8 of 57
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`
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
`
`9
`
`APPEARANCES:
` On behalf of the Patent Owner:
` ERIKA H. ARNER, ESQUIRE
` Finnegan, Henderson, Farabow, Garrett &
` Dunner, LLP
` 11955 Freedom Drive
` Reston, Virginia 20190
` (571) 203-2754
` erika.arner@finnegan
` -and-
` RACHEL L. EMSLEY, Esquire
` Finnegan, Henderson, Farabow, Garrett &
` Dunner, LLP
` 2 Seaport Lane, 6th Floor
` Boston, Massachusetts 02210-2001
` (617) 646-1624
` rachel.emsley@finnegan.com
` -and-
` STEVEN S. BORSAND, ESQUIRE
` Trading Technologies International, Inc.
` 222 South Riverside Plaza, Suite 1100
` Chicago, Illinois 60606
` (312) 476-1018
` steve.borsand@tradingtechnologies.com
` On behalf of the Petitioners:
` LORI A. GORDON, ESQUIRE
` ROBERT E. SOKOHL, ESQUIRE
` RICHARD M. BEMBEN, ESQUIRE
` Sterne, Kessler, Goldstein & Fox
` 1100 New York Avenue, N.W.
` Washington, D.C. 20005
` (202) 772-8997
` lgordon-PTAB@skgf.com
` rsokohl-PTAB@skgf.com
` rbembem-PTAB@skgf.com
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`www.hendersonlegalservices.com
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`Page 9 of 57
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
`
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` P R O C E E D I N G S
` JUDGE MEDLEY: Good afternoon. This is
`Judge Medley. I have Judges Petravick and Hoffmann.
`This is in regard to CBM2015-00161, 172, 179, 181,
`182 and CBM2016-00009. At this time, I'd like to
`take a roll call beginning with Petitioner.
` MR. PHILLIPS: John Phillips for --
`counsel for Petitioner Tradestation.
` MR. KESSEL: Adam Kessel, counsel for
`Petitioner Tradestation. I'm admitted pro hac vitae
`in two of these CBMs.
` JUDGE MEDLEY: Okay. Anybody else for
`Petitioner?
` MS. GORDON: Yes, Your Honor. This is
`Lori Gordon, Rob Sokohl and Rick Bemben. We are
`counsel for Petitioners in the 179, 181, 182 and 009
`CBM proceedings.
` JUDGE MEDLEY: Thank you. Anybody else
`for Petitioner? Okay. How about for Patent Owner?
` MS. ARNER: Hi, Judges. This is Erika
`Arner. I'm lead counsel for the Patent Owner in all
`of the proceedings, joined by Rachel Emsley, also
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 10 of 57
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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`from Finnegan, and Steve Borsand from Trading
`Technologies, the Patent Owner.
` JUDGE MEDLEY: Anybody else? I
`understand we have a court reporter. We understand
`that counsel for Patent Owner requested the call for
`a number of items they wanted to discuss, and it
`appears that the items are all items that Patent
`Owner wishes to -- Patent Owner wishes to file, so
`we'll begin with item number 1, Patent Owner to file
`motion to dismiss.
` MS. ARNER: Great. Thank you, Judge.
`And yes, we were able to talk with both the counsel
`from Sterne and then counsel from Fish on Friday to
`discuss the issues that we wanted to bring to the
`Board. This stems from our -- in relation to one of
`the proceedings where it seemed that we are
`discussing the same issues sort of over and over
`again, and trying to find a way to streamline some
`of these proceedings and think creatively.
` We suggested that we convene this joint
`call, and so we appreciate the Board and counsel for
`both Petitioners participating. Regarding the
`
`202-220-4158
`
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`www.hendersonlegalservices.com
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`Page 11 of 57
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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`motion to dismiss, the Patent Owner seeks
`authorization to file a motion to dismiss that would
`cover all of the proceedings. We are in a pretty
`extreme situation here, where there are -- I guess
`we are in the third batch of CBM filings by the same
`litigation defense group. They have been staggered
`over several years.
` We had a first batch with -- I think
`there were five petitions that were filed by TD
`Ameritrade on many of the same patents that are
`involved now. Those eventually were terminated
`pursuant to settlement between the parties. Then
`there was a second batch from CQG involving some of
`the patents, and so those were not institutes, and
`so now we have the staggered filing of six new
`petitions so far with very similar arguments, the
`same prior art, et cetera.
` And from the Patent Owner's perspective,
`the Patent Owner is trying to think creatively to
`try every remedy to stop this sort of serial filings
`because with the CBMs being the special proceedings
`that they are, there is not the one-year protection
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 12 of 57
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`
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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`that the IBRs provide, and there is not the
`limitation on the grounds like in a regular post
`grant review.
` And so the Patent Owner is asking to file
`a motion to dismiss, to ask the Board to use its
`discretion to protect the Patent Owner in this case,
`to -- to address the staggering of these filings,
`these multiple filings and in some cases up to three
`different filings on the same patent. And then also
`the second issue of finding that the patents are not
`CBMs.
` So those are the two issues that the
`Patent Owner seeks to file in motions to dismiss
`that would, I think, be able to be filed in a single
`motion that would allow briefing, complete briefing
`of those two discrete issues. And we would
`understand that the Petitioners would have a
`response, so that the issues would be fully before
`the Board and presented for determination in a more
`streamlined fashion.
` At least so far we have the same panel,
`you were the three judges assigned to all of the
`
`202-220-4158
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`www.hendersonlegalservices.com
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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`ones so far, and we don't know yet, but assume that
`maybe you will also have the new ones. And so this
`would give sort of a single decision point on both
`the sort of extreme fact scenario of all of the
`filings, and then the threshold jurisdictional issue
`of CBM going to the underlying authority across the
`petitions.
` JUDGE MEDLEY: Are you through with item
`1?
` MS. ARNER: I believe so, yes. Happy to
`answer any questions you might have, Judge, about
`logistics or our proposal.
` JUDGE MEDLEY: I just have a few. So
`typically, these kinds of arguments -- or any,
`actually, any kind of argument, we would want to see
`a preliminary response. And so that kind of cuts
`down on the cost to us and to the parties. We don't
`want to encourage, and certainly discourage, having
`separate motions, especially before we even decide
`whether we are going to institute, so I'm wondering
`what would prevent you from making these arguments
`in your preliminary responses?
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`202-220-4158
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`www.hendersonlegalservices.com
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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` MS. ARNER: Yes. That's a good question.
`And we are not suggesting that the Board start a new
`procedure where in every case people could come in
`and raise individual issues like this, in a
`piecemeal fashion. We are trying to do kind of the
`opposite of a piecemeal fashion. And I think, first
`of all, the difference between filing these and the
`preliminary responses is certainly the burden on the
`Patent Owner and the Board. The two issues we've
`chosen are very focused -- we think very focused
`issues, and common across all of the proceedings.
`And so far we have filed preliminary responses in
`the first two as they came due. The others are
`coming due every few weeks for the next month or
`two, and so then the Board's decisions will be
`staggered in that same fashion.
` And at least on the two very focused
`issues that we'd like to put in our motion to
`dismiss, we think it would improve efficiency to put
`just a single set of briefing in on that issue. The
`other thing is I don't think we are talking about a
`typical case here, where a Patent Owner is saying,
`
`202-220-4158
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`www.hendersonlegalservices.com
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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`hey, we've already had one petition on this, you
`shouldn't take the second one. I mean, this is a
`much more extreme situation where we've had this
`coordination by the same litigation defense group
`over several years and Trading Technologies had been
`trying everything.
` We did try the preliminary response route
`in the first batch and those were eventually
`terminated. We tried a motion to dismiss in the
`second batch. That was denied, but the argument in
`the motion to dismiss was ultimately the one that
`ended up resulting in the denial of institution in
`those cases. And so, you know, as I said, we're
`trying to think creatively, and I do think the
`situation here is very different from what the Board
`routinely sees. I don't think this would be setting
`up some new proceeding where there would be a
`pre-filing of dismissal issues, but here the CBM,
`being a jurisdictional threshold issue, even the
`Federal Circuit has recognized that it goes to the
`Board's underlying authority, and is reviewable.
` And actually in their petitions, the
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`November 23, 2015
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`Petitioners have said that the patents are all
`essentially covering the same -- essentially the
`same trading screen GUI, and they rely on previous
`decisions in this batch of cases for their main
`argument on why the patents are CBMs.
` So I think from the Petitioner's papers
`and from our perspective as Patent Owners, it seems
`like the CBM issue is a separate one in this case
`where we have such a batch of cases already filed,
`previously filed, the same panel of the Board. I
`think this is a very unique situation. And for that
`reason would warrant the Board exercising some
`discretion to protect the Patent Owner, to try and
`resolve these issues in a more efficient fashion.
` It's something that you're not going to
`see in most cases, thankfully. We haven't seen this
`kind of coordinated multiple-year-long,
`multiple-petition file strategy in other cases, but
`this one is the one we are aware of. It seems like
`it warrants some special treatment, which is what we
`are asking the Board to allow us to brief.
` JUDGE MEDLEY: How many pages are you
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`November 23, 2015
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`proposing for your motion?
` MS. ARNER: I think that if we are able
`to address those two focused issues, again, the
`serial filings, the staggered nature of the serial
`filings asking the Board's discretion, because of
`that, to deny them. And then the CBMs being our
`second issue, we'd like to file, we can use the
`Board's usual motion practice, which would allow for
`an opposition of equal pages. And if we were to do
`a 15-page motion on each of those two issues, that
`would give the Petitioners a chance to respond and
`the Board to decide just a single motion on each
`issue.
` JUDGE MEDLEY: And how quickly can you
`submit -- submit the briefing, whether it be in your
`preliminary response or in a separate motion?
` MS. ARNER: Well, the challenge is
`putting it in the preliminary response. Of course,
`there is other issues and some of the petitions,
`there are prior art, the same prior art that was
`previously in petitions is now again in petitions.
` And so, you know, there are other issues
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`Conference Call
`November 23, 2015
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`and we are not asking for the motion to dismiss to
`cover those. Because we are not trying to create a
`whole new procedure here. That's why we focused on
`those two. If need be, we could file those motions
`to dismiss very quickly, recognizing that the idea
`is that we would have an efficiency by putting these
`things in, we would perhaps seek, if we could, maybe
`a month's delay in the next preliminary responses.
`They are due in a couple of weeks, every few weeks,
`so that that would allow the parties and the Board
`to focus on the two threshold issues that we'd like
`to raise. So we could propose an adjustment perhaps
`to the preliminary response. The next one, I think,
`is due December 15th. But we could get the motions
`to dismiss filed very quickly, within a couple of
`weeks.
` JUDGE MEDLEY: Okay. And we were
`thinking much quicker. If we allowed you to refile
`your preliminary responses and the two that you've
`already filed, we were thinking end of this week,
`Monday at the latest. So --
` MS. ARNER: I'm sorry. To refile?
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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` JUDGE MEDLEY: As opposed to having a
`separate motion. Monday, November 30th. We will
`take it under consideration.
` MS. ARNER: Can you just clarify what
`your question was -- the wrong question. I
`apologize if that's the case.
` JUDGE MEDLEY: I had asked you how
`quickly you could get your paper in, whether it be
`in the form of a separate motion to dismiss or in
`the form of your preliminary response, just
`obviously the ones that aren't due yet, you still
`have that amount of time, but if we were to allow
`you to refile your preliminary responses that you've
`already filed, say for 161 and 172, that we were
`thinking of extending the deadlines in those two
`cases to give you until next Monday to include the
`information.
` MS. ARNER: So the arguments actually
`already are there in those papers, but they are
`unique to those patents, and so what we are
`suggesting in a motion to dismiss would be a single
`motion that would cover all six proceedings.
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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` JUDGE MEDLEY: I guess I'm not really
`following, because all the patents are separate. I
`don't understand how you can, you know, argue the
`CBM issue because that goes to scope of what's being
`claimed.
` MS. ARNER: Actually, that's what makes
`this situation unique, is that we are suggesting
`that it might be possible to treat all of them
`together. On the first issue, the serial filings,
`really the argument there does transcend a single
`proceeding because the point there is we've had
`these, I don't know if it's a dozen now or more,
`sort of staged serial filings over a few years by
`the various defendants in this single litigation
`defense group.
` And so that motion to dismiss would cover
`all of them because it's really asking for
`extraordinary relief in the form of a Board
`exercising its discretion to stop these staggered
`filings. I think that motion is not -- it's not
`unique to a single case. It's really because of all
`of the cases as a batch. And then on the CBM issue,
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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`the parties really, the difference between the
`parties have come down to whether improvements to a
`GUI are a covered business method or not.
` I don't think the parties are arguing
`about the financial prong or general liability, but
`fundamentally, are these improvements to a GUI a
`CBM. And even the Petitioner has said all of these
`patents are essentially the same trading screen GUI,
`and they cite to the Board's decisions in all the
`various cases as evidence of the CBM argument. And
`so both parties are seeming to treat these as sort
`of broader CBM issue, a much more fundamental one,
`which is, you know, whether these improved GUIs are
`covered business methods at the first step. And so
`we would see that as something that could be argued
`together.
` JUDGE MEDLEY: So let's back up. I have
`one last question before I let Petitioner speak. So
`if we were to let you refile your preliminary
`responses for the first two, I understand you're
`saying you wouldn't do that because you already have
`the arguments in there?
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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` MS. ARNER: The arguments are there and
`what we are trying to do instead of having to go
`through with the Patent Owner having to write these
`arguments again and again in the different cases and
`having the Board look at them on this piecemeal
`basis, the arguments are substantially the same in
`both the CBM position, the Petitioners have taken
`essentially the same GUI position also. So the
`arguments on the CBM issue and on the serial filings
`issue are basically the same in all of the cases.
`And so we are looking for a more streamlined
`approach rather than using the preliminary
`responses.
` JUDGE MEDLEY: I'd like to hear from
`Petitioners at this time.
` MS. GORDON: This is Lori Gordon
`representing the Petitioners for the 179, 181 and
`182 and 009 proceedings. So first of all, we
`strongly disagree with various characterizations
`that Patent Owner has made about these proceedings.
`They are mischaracterizing the nature of the
`District Court proceeding, as well as the nature of
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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`what was in our various petitions. The fact of the
`matter is Patent Owner made a decision to sue
`multiple different companies on these patents and
`there is nothing in the statute that prevents
`companies from filing CBM proceedings.
` They talk about three batches, but the
`first batch of proceedings was terminated due to
`settlement, so what Patent Owner is discussing is
`certainly not extraordinary in the context of what
`has been done and what is currently occurring in the
`Patent Office related to IBR and CBM filings. We
`strongly oppose the remedy that Petitioner -- or
`Patent Owner is requesting because they have an
`avenue for addressing this information or these
`issues in a preliminary response, and that is
`statutory, under 313 of the statute. That is the
`vehicle for them to address each of these issues.
` The second point is the primary focus of
`their argument seems to be on the serial attack,
`which sounds to me like a 325(b) type argument. And
`the reality of the situation is not as simple as
`Patent Owner seeks the Board to believe. Each of
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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`these cases has unique individual facts. They have
`different prior art that's been asserted against the
`claims. And this isn't the same prior art that's
`been asserted in the earlier cases. There is
`different claims and different claim scopes, so each
`proceeding is unique.
` The second point is Patent Owner's
`position on what we are arguing related to the CBM
`prong is completely a mischaracterization. It's not
`a matter of whether I think the point was a simple
`issue of whether an approved GUI is a CBM. There is
`a lot more information and nuance to the argument
`than that. That's -- that was not captured by
`Patent Owner in their presentation here today and we
`would strongly disagree with any decision that
`provides Patent Owner with an additional month for
`their preliminary response. It's just not warranted
`in these circumstances.
` And I'd like to point out that the Office
`has already addressed the issue of whether these
`patents are CBM-eligible multiple times. In fact,
`in the first round involving the TD Ameritrade
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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`Petitioner, the Board found that these were CBM
`eligible. Patent Owner requested rehearing in that
`circumstance on that issue. The Board denied it.
`So this is really their third bite of this apple,
`and they should not be receiving additional pages
`and efforts to make that case since it's already
`been addressed multiple times.
` JUDGE MEDLEY: Thank you.
` MR. KESSEL: This is Adam Kessel. I've
`been admitted pro hac. And just to give
`specificity, I think the reason we found ourselves
`in this situation is because of the Patent Owner's
`own serial litigation. They filed around 30
`lawsuits, including multiple lawsuits against the
`same parties, including some of the same parties who
`are in this group of CBM Petitioners. And
`throughout the cases, the patent assertions have
`changed several times.
` I represent Tradestation. We were sued
`on seven patents, five more were added about a year
`ago. And just last week, we discovered that the
`Patent Owner wants to add another five patents that
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`CASE CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`November 23, 2015
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`were added just a year ago. If there is anything
`unusual about the way we are coming here with so
`many petitions, I think it's a direct result of
`having so many patent assertions against so many
`parties, and it's been such a moving target over the
`past 10 years.
` JUDGE MEDLEY: Okay. Thank you. All
`right. I think we
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