Paper No. ______
` Filed: March 21, 2016
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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.,
`
`Petitioner
`v.
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` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner
`_________________
`Case CBM2015-00181
`U.S. Patent 7,676,411 B2
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`Patent Owner’s Objections to
`Evidence Pursuant to 37 C.F.R. § 42.64
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` Filed: March 21, 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.,
`
`Petitioner
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner
`_________________
`Case CBM2015-00181
`U.S. Patent 7,676,411 B2
`
`
`
`
`
`
`
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`Patent Owner’s Objections to
`Evidence Pursuant to 37 C.F.R. § 42.64
`
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner objects to the following
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`Case CBM2015-00181
`U.S. Patent 7,676,411 B2
`
`
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`Petitioners’ Exhibits:
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`• 1003 (U.S. Patent No. 5,077,665 to Silverman et al.);
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`• 1004 (U.S. Patent No. 5,297,031 to Gutterman et al.);
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`• 1005 (U.S. Patent No. 5,375,055 to Togher et al.);
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`• 1006
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`(“Futures/Option Purchasing System Trading Terminal
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`Operation Guide,” Tokyo Stock Exchange);
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`• 1007 (English Translation of “Futures/Option Purchasing System
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`Trading Terminal Operation Guide,” Tokyo Stock Exchange );
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`• 1008 (Certificate of Translation for “Futures/Option Purchasing
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`System Trading Terminal Operation Guide”);
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`• 1009 (WO 90/11571 to Belden et al.);
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`• 1010 (Deposition Transcript of Atsushi Kawashima dated November
`
`21, 2005);
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`• 1014 (Alan Cooper, “About Face: The Essentials of User Interface
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`Design”);
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`• 1015 (Ben Shneiderman, “Designing the User Interface: Strategies for
`
`Effective Human-Computer Interaction,” Third Edition);
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`• 1017 (Robert Deel, “The Strategic Electronic Day Trader”);
`
`1
`
`
`
`
`• 1018 (U.S. Patent No. 5,263,134 to Paal et al.)
`
`Case CBM2015-00181
`U.S. Patent 7,676,411 B2
`
`
`• 1022 (U.S. Patent No. 6,408,282 to Buist);
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`• 1026 (Weiss, “After the Trade is Made”);
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`• 1027 (U.S. Patent No. 5,960,411 to Hartman et al.); and
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`• 1036 (Inside Macintosh, Promotional Edition, Apple Computer, Inc.).
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`I.
`
`OBJECTION TO PETITIONERS’ EXHIBITS 1003-1009, 1014-1015,
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`1017-1018, 1022, 1026-1027, and 1036
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`Patent Owner objects to Exhibits 1003-1009, 1014-1015, 1017-1018, 1022,
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`1026-1027, and 1036 to the extent that Petitioners rely on their contents for the
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`truth of the matters asserted therein. Exhibits 1003-1009, 1014-1015, 1017-1018,
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`1022, 1026-1027, and 1036 are inadmissible hearsay under FRE 801 and 802, and
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`no exception applies.
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`II.
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`OBJECTION TO PETITIONERS’ EXHIBITS 1006-1008
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`Petitioners have submitted no evidence to authenticate Exhibit 1006, and
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`deficient evidence for Exhibit 1007 as set forth below, making both inadmissible
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`under FRE 901.
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`Patent Owner also objects to Exhibit 1006-1008 under FRE 602. Petitioners
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`fail to provide a credible translation of TSE and fail to conform with the Board’s
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`rules for submitting translations of foreign language documents. In particular, 37
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`C.F.R. § 42.63(b) requires that “[w]hen a party relies on a document or is required
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`2
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`Case CBM2015-00181
`U.S. Patent 7,676,411 B2
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`to produce a document in a language other than English, a translation of the
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`document into English and an affidavit attesting to the accuracy of the translation
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`must be filed with the document.” The record lacks such an affidavit under Rule
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`42.63(b) attesting to the accuracy because Mr. Cohen: (1) incorrectly refers to
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`“2014.05.19 - 1003 – TSE” as an English translation; and (2) on information and
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`belief, he did not, himself, translate the Japanese language TSE into English,
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`thereby demonstrating his lack of personal knowledge regarding the matter for
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`which he is testifying. See FRE 602 (requiring personal knowledge to testify to a
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`matter). Exhibit 1008 is noncompliant with 37 C.F.R. § 42.63(b). This makes
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`Exhibit 1006 and 1007 inadmissible under 37 C.F.R. § 42.61(a) (“Evidence that is
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`not taken, sought, or filed in accordance with this subpart is not admissible.”).
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`Patent Owner further objects to Exhibit 1007 under FRE 403. Petitioners’
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`Exhibit 1007 substitutes nearly verbatim Patent Owner’s own translation of the
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`TSE’s Chapter 7 for the inaccurate translation previously provided by Petitioners’
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`counsel. Compare Ex. 1007, 91-120 with Ex. 2024, Appx. E (CBM2014-00131
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`Ex. 2097). Despite having copied Patent Owner’s translation into Exhibit 1007, on
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`pages 7-25 and 7-26 (Exhibit 1007, 115-116), Petitioners omit two translator’s
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`notes from Patent Owner’s original translation (Ex. 2024, 98-99). Exhibit 1007 is
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`therefore incomplete, misleading, and inadmissible under FRE 403.
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`III.
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`OBJECTION TO PETITIONERS EXHIBIT 1010
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`3
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`Case CBM2015-00181
`U.S. Patent 7,676,411 B2
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`Patent Owner objects to Exhibit 1010 to the extent that Petitioners rely on its
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`contents for the truth of the matters asserted therein. Exhibit 1010 is inadmissible
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`hearsay under FRE 801 and 802, and no exception applies.
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`Patent Owner also objects to portions of Exhibit 1010 under FRE 401 and
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`402 as irrelevant, or in the alternative, under FRE 403 as prejudicial and waste of
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`time. Petitioners have cited only to 22 pages of the over 100-page exhibit. The
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`uncited portions are irrelevant, and, to the extent relevant, are prejudicial and a
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`waste of time.
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`IV.
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`OBJECTION TO PETITIONERS’ EXHIBITS 1003, 1004, 1018, 1022,
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`and 1027
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`Petitioners rely on Exhibits 1003, 1004, 1018, 1022, and 1027 as disclosing
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`certain features of the claims of the ’411 patent. However, Exhibits 1003, 1004,
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`1018, 1022, and 1027 are irrelevant to the grounds (§§ 101 and 103) instituted by
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`the Board, and are therefore inadmissible under FRE 401 and 402 because they
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`lack a tendency to make any fact at issue in this proceeding more or less probable.
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`Respectfully submitted,
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`By: /Rachel L. Emsley/
`Rachel L. Emsley, Backup Counsel
`Registration No. 63,558
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`4
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`Dated: March 21, 2016
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing Patent
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`Owner’s Objections to Evidence Pursuant to 37 C.F.R. § 42.64 were served on
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`March 21, 2016, via email directed to counsel of record for the Petitioner at the
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`following:
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`
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`
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`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori Gordon
`lgordon-PTAB@skgf.com
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`Richard M. Bemben
`rbemben-PTAB@skgf.com
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`PTAB@skgf.com
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`
`/Valencia Daniel/
`Valencia Daniel
`Litigation Legal Assistant
`
`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
`
`
`
`
`
`Dated: March 21, 2016
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