`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`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.;
`Petitioners
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`_________
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`CBM2015–00181
`Patent 7,676,411
`___________________
`
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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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`CBM2015-00181
`Patent 7,676,411
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`INTRODUCTION ................................................................................................... 2
`I.
`II. ARGUMENT ........................................................................................................ 4
`A. The eSpeed/CQG Transcripts ........................................................................... 4
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`B. The 32 Electronic Trader Declarants ................................................................ 5
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`C. Third Party Emails ............................................................................................ 7
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`D. Brumfield Sketch and Animations .................................................................... 9
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`E. eSpeed/CQG Jury Verdict Forms & Docket Entry .........................................10
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`F. Confidential Declaration of Christopher Thomas ...........................................12
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`III. CONCLUSION ....................................................................................................16
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`I.
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`INTRODUCTION
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`CBM2015-00181
`Patent 7,676,411
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`TT’s Patent Owner Response (“TT’s POR”) dumps into the record and
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`buries the Board with hundreds of pages of documents without regard to their
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`admissibility. But this proceeding is governed by the Federal Rules of Evidence
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`and those Rules set fair boundaries on the admissibility of evidence. TT’s ignores
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`those rules.
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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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`rely on a “large volume of documents produced in previous district court cases”
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`without regard to the Board’s Rules and Federal Rules of Evidence 802 and 901.
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`(See Paper 38, 2–3 in CBM2015-00182.) The Board denied TT’s request. See id.
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`Having been denied permission to do so, TT proceeded to file a tremendous
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`number of documents from the district court cases without regard to the Board’s
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`order and the rules governing this proceeding. That evidence should be stricken.
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`A significant number of the documents submitted by TT violate the
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`prohibition on hearsay. See FRE 802. Absent one of the well-established
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`exceptions to hearsay, such as the unavailability of a declarant, hearsay is
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`inadmissible. TT disregards this Rule entirely by introducing hearsay statements
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`from dozens of individuals in an effort to defend the patentability of its claims.
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`A significant number of TT’s documents also fail to meet the basic
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`requirements of authenticity required by Federal Rule of Evidence 901. Despite
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`Petitioners’ timely objection, TT offered no competent evidence that cures this
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`objection leaving the Board and Petitioners with no basis to gauge whether the
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`documents are genuine.
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`TT’s evidence also ignores the proper boundaries of expert witness
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`testimony in contravention of Federal Rule of Evidence 702. Rule 702 permits an
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`expert to offer opinions based on his specialized knowledge in the field. But
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`significant portions of Mr. Thomas’ declaration are not opinions of Mr. Thomas.
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`Rather, Mr. Thomas purports to offer factual testimony that is not based on his
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`own perception but is instead based upon his review of district court depositions
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`and trial transcripts. That underlying evidence should not be admitted in this
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`proceeding as TT may not use Mr. Thomas “simply as a conduit for introducing
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`hearsay under the guise that the testifying expert used the hearsay as the basis of
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`his testimony.” Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 136 (2d Cir. 2013)
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`(citation omitted). This testimony is improper and, therefore, should be excluded.
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`See, e.g., United States v. Dukagjini, 326 F.3d 45, 58 (2d Cir. 2003).
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`Accordingly, Petitioners file this motion pursuant to 37 C.F.R. § 42.64(c)
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`and in accordance with the Board’s May 12, 2016 Order modifying Due Date 4.
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`(Paper 38 at 8.)
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`CBM2015-00181
`Patent 7,676,411
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`II. ARGUMENT
`A. The eSpeed/CQG Transcripts: Exhibits 2033, 2211, 2220, 2222, 2224,
`2225, 2228, 2232, 2247, 2251, 2273–2276, 2286–2288, and 2292–2296
`The Board should exclude Exhibits 2033, 2211, 2220, 2222, 2224, 2225,
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`2228, 2232, 2247, 2251, 2273–2276, 2286–2288, 2292–2296 (“eSpeed/CQG
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`Transcripts”) because they are hearsay to which no valid exception applies. Most
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`of these exhibits are cited in TT’s Response. (See Paper 76 at 12, 19, 31, 32, 36,
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`37, 39–44, 46, 48–51, 55, and 68; see also Paper 79 (providing limited citations to
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`the record for TT exhibits).) In addition, as discussed further in section II.E infra,
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`TT’s technical expert Mr. Thomas relies upon these transcripts to support the
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`assertions in his declaration (Ex. 2169) regarding, for example, the background of
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`the claimed invention and alleged secondary considerations, including
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`“commercial success,” “initial skepticism followed by acceptance,” “widespread
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`copying,” “failure of others,” “praise and accolades,”, and “unexpected results.”
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`Petitioners timely objected to each of the eSpeed/CQG Transcripts on the basis of,
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`among other things, hearsay. See Paper 29 at 20; Paper 78 at 5–13.
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`The eSpeed/CQG Transcripts purport to be excerpts of a trial or deposition
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`transcript from district court proceedings involving third parties. The eSpeed/CQG
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`Transcripts are hearsay as none were made while testifying for the current
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`proceeding and all are being offered for the truth of the matters asserted. FRE 801.
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`None of these statements fall under any proper hearsay exception. For example, TT
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`has not shown that the witnesses are unavailable. See FRE 804. Nor has TT shown
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`that any specific exception under FRE 803. Likewise, the residual exception does
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`not apply here as TT cannot credibly argue that the eSpeed/CQG Transcripts are
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`somehow more probative evidence that any other evidence it could have obtained
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`through reasonable efforts. See FRE 807.
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`Accordingly, the Board should exclude the eSpeed/CQG Transcripts.
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`B.
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`The 32 Electronic Trader Declarants: Exhibits 2223
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` The Board should exclude the exhibit that purports to contain declarations
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`from 32 individuals in the electronic trading industry (Exhibit 22231) (“Electronic
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`Trader Declarants Exhibits”); there is no evidence of record that these exhibits are
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`authentic and each is hearsay to which no exception applies.
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`The Electronic Trader Declarants Exhibits are offered by TT as evidence in
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`support of secondary considerations of non-obviousness. See Paper 76 at 32, 33,
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`38, 39, 46, 48, 53–55. Portions of these exhibits are discussed by TT’s expert. (Ex.
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`2169, ¶¶ 104, 106, 153.) The exhibits contain, for example, statements by
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`1 Exhibit 2223 includes Exhibits 2210, 2216, 2218, 2219, 2221, 2227, 2229,
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`and 2239, which TT separately submitted. The Board should exclude these
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`separately submitted declarations for the same reasons discussed above regarding
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`Exhibit 2223.
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`individuals regarding their opinions concerning TT’s alleged commercial
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`embodiments. See Ex. 2223. Petitioners objected to all of these declarations on the
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`basis of, among other things, authenticity and hearsay. (Ex. 1052 at 14–17.)
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`At the outset, the Board should exclude Electronic Trader Declarants
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`Exhibits for lack of authentication because TT has offered no evidence that the
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`each exhibit is what it purports to be. FRE 901. In fact, at least one of the exhibits
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`contained within Exhibit 2223 is anything but a “declaration.”2 TT chose to forego
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`filing any supplemental evidence to cure Petitioners’ authenticity objections to
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`these exhibits.
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`In addition, each of these declarations is hearsay as none were made while
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`testifying for the current proceeding and all are being offered for the truth of the
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`matters asserted. FRE 801. None of the declarations are excluded from the hearsay
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`rule because they are not being used for a purpose permitted under FRE 801(d).
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`For example, TT has not shown that any of the declarants whose testimony it relies
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`upon are unavailable. FRE 804. Nor has TT shown that any specific exception
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`under FRE 803 or the residual exception under FRE 807 applies here. Indeed, TT
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`2 Exhibit 2210 (also contained within Exhibit 2223) purports to be a
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`declaration of Mr. Daniel Durkin. Exhibit 2210 actually appears to be an email
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`between Inventor Mr. Harris Brumfield and Mr. Durkin.
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`cannot credibly argue that 2004 declaration testimony has equivalent
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`circumstantial guarantees of trustworthiness as that of testimony from these same
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`declarants if Petitioners had an opportunity for vigorous cross examination. TT has
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`not shown that this is an “exceptional case” under FRE 807. See, e.g., Conoco Inc.
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`v. Dep’t of Energy, 99 F.3d 387, 392 (Fed. Cir. 1996) (“The two residual hearsay
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`exceptions . . . were meant to be reserved for exceptional cases.”). Accordingly, the
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`Board should exclude the declarations as hearsay.
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`C. Third Party Emails: Exhibits 2240–2246, 2250, 2252–2272, and 2277
`The Board should exclude Exhibits 2240–2246, 2250, 2252–2272, and 2277
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`each (the “Third Party Emails”) for lack of authenticity and because they are
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`hearsay to which no exception applies. The Third Party Emails each purports to be
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`an email (or a demonstrative depicting an email) that is allegedly from employees
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`of third parties eSpeed or CQG. These exhibits are cited in TT’s Response. (See,
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`e.g., Paper 76 at 30, 50.) And both TT and its technical expert use them here as
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`support for their factual assertions regarding alleged copying of the claimed
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`invention by others. See Ex. 2169 at ¶ 129. Petitioners timely objected to these
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`emails on the basis of, among other things, authenticity and hearsay. (Ex.1052 at
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`14–16.)
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`Like the Electronic Trader Declarations discussed above, the Board should
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`exclude these Third Party Emails for lack of authentication. FRE 901. In response
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`to Petitioners’ timely objections, TT attempted to cure some, but not all, of
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`Petitioners’ objections to the Third Party Emails through submission of the
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`Declaration of TT’s counsel, Ms. Jennifer Kurcz, who cited Third Party Email
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`Exhibits 2240–46, 2250, 2252, 2254, 2258, 2260, 2262, 2270–2272, and 2277.
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`However, TT’s attempt to cure its evidentiary shortcomings fails because Ms.
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`Kurcz provided no evidence that these exhibits are true and correct copies of what
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`TT claims as required by FRE 901. Indeed, Ms. Kurcz does not assert that she has
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`knowledge that these exhibits are true and correct copies nor does she purport to
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`know the origin other than they were produced by a third party during discovery.
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`Ms. Kurcz’s assertion that these documents were admitted in district court does not
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`mean that they are admissible here. Accordingly, the Third Party Emails should be
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`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. FRE 801. TT has not suggested that
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`there is a non-hearsay purpose for any of the Third Party Emails. See, e.g., FRE
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`801(d). Nor has TT shown that the witnesses whose statements it relies upon are
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`unavailable. FRE 804. It also has not shown that any specific exception under FRE
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`803 or the residual exception under FRE 807 applies. Indeed, TT cannot credibly
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`argue that the Third Party Emails have equivalent circumstantial guarantees of
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`trustworthiness or that the other elements of FRE 807 are met such that the Board
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`should consider this is an “exceptional case.” See, e.g., Conoco Inc., 99 F.3d at
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`392. Accordingly, the Board should exclude the emails as hearsay.
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`D. Brumfield Sketch and Animations: Exhibits 2212, 2213, and 2214
`The Board should exclude the sketch and animations for lack of authenticity
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`and because they are hearsay to which no exception applies. Exhibit 2213 purports
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`to depict a 1998 sketch of Mr. Brumfield’s claimed invention and is cited in TT’s
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`POR at page 37. Exhibits 2212 and 2214 each purport to be video animations of
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`unknown provenance. TT cites to Exhibits 2213 and 2214 in its POR; it never cites
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`to Ex. 2212. See Paper 76 at 37 (Ex. 2213); 38 (Ex. 2214). In addition, Mr. Thomas
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`improperly uses these animations as evidence of how TT’s product and some prior
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`art actually operates. See Ex. 2169 at ¶ 83 (Ex. 2212); ¶ 85 (Ex. 2213), ¶ 88 (Ex.
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`2214). Petitioners timely objected to all of these exhibits. (Ex. 1052 at 14–17.)
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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 purport it to be. In the case of Ex.
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`2212, 2213, and 2214, TT has offered no such evidence. As a consequence, these
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`exhibits should be excluded from the record on that basis.
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`Moreover, Exhibits 2212, 2213, and 2214 are also hearsay for which no
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`exception applies. Ex. 2212, although not cited in the TT’s POR, is purportedly a
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`sketch prepared by inventor Mr. Brumfield. To the extent TT offers Ex. 2212 for
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`evidence of whatever it purports to illustrate, it should be excluded. Ex. 2213 and
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`2214 purport to be computer–generated cartoons showing how actual software
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`products are operated. TT offers these exhibits as evidence of the alleged benefits
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`of the invention and the problems associated with the prior art. (Paper 76, at 37–
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`38.) TT did not respond to any of Petitioners’ timely objections, so there is no
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`evidence showing who prepared these cartoons or under whose direction. Thus,
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`each clip was made by unidentified animators who are not testifying in this
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`proceeding, and TT is using each clip to prove the truth of the matter asserted.
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`Therefore, they are hearsay and should be excluded. FRE 801.
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`E.
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`eSpeed/CQG Jury Verdict Forms & Docket Entry: Exhibits 2034,
`2036, 2278
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`The Board should exclude Exhibits 2034, 2036, and 2278, which purport to
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`be jury verdict forms (Exs. 2030, 2278) and a docket entry (Ex. 2032) associated
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`with Trading Technologies Int’l, Inc. v. eSpeed, Inc., No. 04-cv-05312 (Exs. 2034,
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`2036) and Trading Technologies Int’l, Inc. v. CQG, Inc., No. 05-cv-4811 (Ex.
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`2278). These Exhibits are inadmissible because each is irrelevant and hearsay.
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`Petitioners timely objected to Exhibits 2034, 2036, and 2278 on the basis of,
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`among other things, lack of relevance and hearsay. See Paper 29, at 19.
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`Both TT and its technical expert Mr. Thomas directly rely on Exhibit 2278
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`in support of their assertions that others copied TT’s alleged commercial
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`embodiment. See Ex. 2169 at ¶, 141. These Exhibits do not tend to make any facts
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`in this proceeding more or less probable. For example, the CQG jury’s
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`determination is of no consequence to the Board’s determination of whether
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`copying of the claimed invention exists. See, e.g., Wyers v. Master Lock Co., 616
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`F.3d 1231 (Fed. Cir. 2010) (“Not every competing product that arguably falls
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`within the scope of a patent is evidence of copying ; otherwise, ‘every
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`infringement suit would automatically confirm the nonobviousness of the
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`patent.’”).
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`TT offered Exhibits 2034 and 2036 as evidence that the “TSE” reference
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`does not qualify as prior art. See Paper 22 at 26, 28, 47, Paper 76 at 64 n.10. The
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`fact that the eSpeed jury found that a third party defendant did not meet its burden
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`of proving the patent obvious under the clear and convincing evidence standard is
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`not relevant to whether Petitioners have met their burden of demonstrating the ’411
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`patent to be unpatentable under the preponderance of the evidence standard. Nor
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`are these documents relevant to whether the ’411 patent claims eligible subject
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`matter under 35 U.S.C. § 101.
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`Because irrelevant evidence is not admissible, the Board should exclude
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`Exhibits 2034, 2036, and 2278. FRE 402. The Board should also exclude these
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`exhibits because they are hearsay being offered for the truth of the matter asserted.
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`FRE 801. Exhibit 2034, 2036, and 2278 do not meet any of the conditions set forth
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`in FRE 801(d) such that they could be deemed non-hearsay. Accordingly, the
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`Board should exclude them from the record.
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`F. Confidential Declaration of Christopher Thomas: Exhibit 2169
`(¶¶ 75, 83–86, 89–92, 94–97, 102–104, 106–111, 126–128, 131, 133–34,
`136–138, 140, 141, 151–153, 172 )
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`Several portions of the Declaration of Christopher Thomas (Exhibit 2169),
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`TT’s expert, exceed the proper boundaries of expert testimony and should be
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`stricken from the record. TT relies on Thomas’s declaration testimony throughout
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`its POR. See Paper 76 at 1, 2, 4, 9, 10, 12, 23, 24, 26–44, 46–59, 62, 68–76.
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`Petitioners timely objected to Exhibit 2169 on the basis of, among other things,
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`inadmissible hearsay and improper expert testimony in violation of at least FRE
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`701, 702 and 703. (Ex. 1052 at 14–17.) The Board should exclude at least the
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`portions of Exhibit 2169—including paragraphs ¶¶ 75, 83–86, 89–92, 94–97, 102–
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`104, 106–111, 126–128, 131, 133–34, 136–138, 140, 141, 151–153, and 171—
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`that purport to provide testimony concerning the conception of the invention, the
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`problem purportedly solved by the inventor, and alleged secondary considerations.
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`Although Mr. Thomas is offered as an “expert witness,” substantial portions
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`of his testimony are not expert opinions. Rather, Mr. Thomas merely repeats,
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`summarizes, and/or characterizes various statements made by declarants outside of
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`this proceeding. This is not testimony based on “scientific, technical, or other
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`specialized knowledge” as contemplated by Rule 702. Rather, TT is impermissibly
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`using Mr. Thomas “as a conduit for introducing hearsay under the guise that the
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`testifying expert used the hearsay as the basis of his testimony.” Marvel
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`Characters, Inc. v. Kirby, 726 F.3d 119, 136 (2d Cir. 2013) (citation omitted).
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`The Federal Rules contemplate that an expert’s testimony will be based on
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`three sources: (1) first hand observation by the expert; (2) presentation at trial; or
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`(3) the kinds of facts or data that that an expert in the field would reasonably rely
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`on in forming an opinion. FRE 703, 1972 Advisory Committee Notes. None of
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`these sources apply to the testimony set forth below. Rather, Mr. Thomas offers
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`testimony based upon evidence presented at a different trial, before a different
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`tribunal, involving different parties. Neither the Federal Rules nor the Board’s rules
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`permit such testimony from an expert.
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`Examples of Mr. Thomas’s improper “opinion” testimony include:
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`• at ¶ 75, explaining and characterizing as “remarkabl[e]” a third party’s
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`alleged reaction to TT’s alleged commercial embodiment;
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`• at ¶¶ 83–86, describing and characterizing what motivated the inventors
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`to develop the claimed subject matter;
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`• at ¶¶ 89–92, describing the alleged development of a commercial
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`embodiment;
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`• at ¶¶ 94–95, describing what one inventor “believed” the benefits of the
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`invention to be and the inventor’s purported efforts to commercialize the
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`alleged invention;
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`• at ¶ 96, offering testimony that the inventor’s “belief in the potential of
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`the invention was justified;”
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`• at ¶¶ 102–103, summarizing and providing direct quotes of third parties
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`to characterize the alleged initial skepticism of TT’s alleged commercial
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`embodiment as “significant”;
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`• at ¶ 106, describing and characterizing what one inventor and other third
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`parties considered “unexpected” about the results of the claimed subject
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`matter;
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`• at ¶¶ 104, characterizing 37 direct quotes from third parties concerning
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`the alleged commercial embodiment as “widespread praise”;
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`• ¶¶ 107–109, quoting and paraphrasing what some third parties said about
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`the value of the alleged commercial embodiment;
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`• at ¶ 110, directly quoting and describing what one former TT executive
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`said about TT’s alleged commercial growth;
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`• at ¶¶ 111, 126–128, 131, 133, 134, 136–138, 140, 141, providing images
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`of what purport to be demonstrative exhibits from the eSpeed trial
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`regarding alleged copying, directly quoting and paraphrasing what third
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`parties have said concerning copying, and characterizing third party
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`actions as “widespread copying”;
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`• at ¶¶ 151–52, repeating and paraphrasing deposition testimony of third
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`parties regarding their beliefs concerning the obvious nature of the
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`claimed invention;
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`• at ¶ 153, characterizing direct quotes of three witnesses’ testimony from
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`the eSpeed district court proceedings as evidence that others in the
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`industry attempted but failed to develop improved GUI tools;
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`• at ¶¶ 171, quoting and paraphrasing how other experts from the eSpeed
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`and CQG cases characterized the claimed invention.
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`All of the paragraphs discussed summarize, characterize, and/or quote from
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`transcripts, exhibits, and declarations from TT’s prior litigations. See, e.g., Ex.
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`2169 at ¶ 75 (Ex. 2210); ¶ 83 (Ex. 2211); ¶ 84–86 (Ex. 2211, Ex. 2213); ¶ 89 (Exs.
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`2211, 2216); ¶ 90–92 (Exs. 2211, 2218, 2219); ¶ 94–95 (Ex. 2211). Mr. Thomas is
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`not offering expert opinions, but is instead improperly acting as a “mouthpiece” for
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`declarants who TT has shielded from cross examination. See, e.g., Loeffel Steel
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`Prod., Inc. v. Delta Brands, Inc., 387 F. Supp. 2d 794, 808 (N.D. Ill. 2005) (“Rule
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`703 was never intended to allow oblique evasions of the hearsay rule.”).
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`While an expert may generally rely on hearsay, expert testimony cannot be
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`used as a vehicle to evade the hearsay requirement. See Dukagjinih, 326 F.3d at
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`57–59. Rule 702 requires that expert testimony be “based on sufficient facts or
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`data” to be admissible. FRE 702(b). By simply repeating or summarizing the
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`hearsay testimony discussed, Thomas has crossed the line from permissibly relying
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`on hearsay to form his expert opinion to impermissibly being a mere conduit for
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`hearsay. Dukagjinih, 326 F.3d at 57–59; see also Lakah v. UBS AG, 996 F. Supp.
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`2d 250, 259 (S.D.N.Y. 2014). The Board should therefore exclude at least the rank
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`hearsay portions of Exhibit 2169 paragraphs 75, 83–86, 89–92, 94–97, 102–104,
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`106–111, 126–128, 131, 133–34, 136–138, 140, 141, 151–153, and 172.
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`III. CONCLUSION
`For the reasons set forth above, Exhibits 2033, 2034, 2036, 2210–2214,
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`2216, 2218–2225, 2227–2229, 2232, 2239–2247, 2250-2278, 2283, 2286-2288,
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`and 2292-2296 should be excluded. In addition, at least Paragraphs 75, 83–86, 89–
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`92, 94–97, 102–104, 106–111, 126–128, 131, 133–34, 136–138, 140, 141, 151–
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`153, and 172 of the Thomas Declaration (Ex. 2169) should also be excluded.
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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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`
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`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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`Date: September 23, 2016
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`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
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`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that the foregoing PETITIONERS’
`
`MOTION TO EXCLUDE was served electronically via e–mail on September 23,
`
`2016, in its entirety on Attorneys for Patent Owner:
`
`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. Kurcz
`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
`
`
`Date: September 23, 2016
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
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