`
`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 CBM2015-00181
`Patent 7,676,411
`_____________
`
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`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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`
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`TABLE OF CONTENTS
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`Case CBM2015-00181
`Patent 7,676,411
`
`I.
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`Introduction ......................................................................................................... 1
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`II. Argument ............................................................................................................. 2
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`A.
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`The TSE manual has been properly authenticated. ...................................... 2
`
`1.
`
`2.
`
`3.
`
`B.
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`TT concedes that the 2005 Kawashima deposition transcript is
`permissible hearsay; TT thus moots its own evidentiary objection. ........ 2
`Admissible evidence shows that Exhibit 1006 is what Petitioner
`purports; TT’s arguments to the contrary are without merit. ................... 3
`TT deposed Kawashima twice and still has no basis to dispute Ex.
`1006’s authenticity; alleged bias goes to weight not admissibility. ......... 8
`The testimony is highly probative and admissible. .................................... 11
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`III. Conclusion ......................................................................................................... 14
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`Case CBM2015-00181
`Patent 7,676,411
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`I.
`
`Introduction
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`TT raises two evidentiary objections in its Motion to Exclude. (Paper 109.)
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`The first challenges the authenticity of the TSE manual. (Ex. 1006.) The second
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`seeks to exclude cross-examination testimony from TT’s own declarants that TT
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`finds too prejudicial for the Board to hear. Both objections lack merit.
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`First, no legitimate challenge can be made to the authenticity of the TSE
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`manual. There is unequivocal and reliable evidence to support the finding that
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`Exhibit 1006 is what it purports to be: namely, a 1998 publication issued by the
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`Tokyo Stock Exchange. (Ex. 1010, 9:19-10:9, 10:19-24, 11:1-3, 11:11-24; Ex.
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`2163, 45:7-46:3; Ex. 1053, Sokohl Decl. ¶ 1.) This 1998 publication has been
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`twice authenticated by an employee of the Tokyo Stock exchange, Atushi
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`Kawashima, who TT has twice deposed—once in this proceeding (Ex. 2163) and
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`once in 2005 (Ex. 1010).
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`Given these circumstantial guarantees of trustworthiness, TT concedes that
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`the 2005 deposition transcript is permissible hearsay. TT does not point to any
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`evidence suggesting that Exhibit 1006 is not the 1998 TSE manual. And, in any
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`event, Mr. Kawashima authenticated Exhibit 1006 again in his 2016 deposition.
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`Second, TT’s efforts to exclude the cross-examination testimony of its own
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`declarants should be rejected. TT’s experts admitted that the claimed inventions do
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`not improve computers. (See, e.g., Ex. 1051, 57:18-58:13; Ex. 1052, 263:15-
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`Patent 7,676,411
`269:13, 247:17-249:2.) That testimony is relevant to whether TT’s patent claims
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`are patent eligible or not. TT had a full and fair opportunity to try to rehabilitate its
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`witnesses through redirect. It chose not to do so. Instead, TT uses this motion as a
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`thinly-disguised attempt to argue the merits of whether “the claimed inventions do
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`not improve computers.” (Paper 109 at 9, 15.) But a motion to exclude is not the
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`proper vehicle to argue the merits or belatedly attempt to rehabilitate declarants.
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`Accordingly, the Board should deny TT’s Motion to Exclude.
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`II. Argument
`A. The TSE manual has been properly authenticated.
`1. TT concedes that the 2005 Kawashima deposition transcript is
`permissible hearsay; TT thus moots its own evidentiary objection.
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`TT does not seek to exclude the 2005 Kawashima deposition transcript
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`(Exhibit 1010). Instead, TT asserts that Petitioners failed to authenticate the TSE
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`manual (Exhibit 1006) because the 2005 Kawashima deposition transcript—which
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`authenticates the TSE manual—is allegedly hearsay. Yet TT undermines all of its
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`alleged “doubts” about the authenticity of the TSE manual by failing to object to
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`the 2005 Kawashima deposition transcript itself and furthermore by conceding that
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`it is admissible hearsay. (Paper 109 at 2-7, 3.) (“[T]he residual hearsay objection of
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`FRE 807 applies to . . . the 2005 Kawashima deposition transcript.”)
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`TT presumably takes this position hoping to receive favorable treatment of
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`its own testimonial evidence from the related district court litigation. To this end,
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`Patent 7,676,411
`TT asserts that “Patent Owner’s evidence from district court litigation and the 2005
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`Kawashima deposition transcript should stand or fall together.” (Id. at 6, emphasis
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`added.) But TT’s bizarre attempt to horse trade on evidentiary issues in its motion
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`is improper. The Office’s regulations place the burden of proof in any motion on
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`the movant, including in motions to exclude. 37 C.F.R. § 42.20(c); see, e.g., TRW
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`Automotive U.S. LLC v. Magna Electronics Inc., IPR2014-01347, Paper 25 at 15
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`(P.T.A.B. Jan. 6, 2016). By conceding that Exhibit 1010 is permissible hearsay, TT
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`quashes its own evidentiary objection. As such, its motion fails.
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`2. Admissible evidence shows that Exhibit 1006 is what Petitioner
`purports; TT’s arguments to the contrary are without merit.
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`Petitioners have produced unequivocal and unrebutted evidence showing
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`that Exhibit 1006 is the TSE manual. That evidence meets the requirement for
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`authentication under each of Fed. R. Evid. 901, 902(11), and 901(b)(4).
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`The certified English translation bears the name of the “Tokyo Stock
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`Exchange Operation System Division” and the date “August, 1998.” (Ex. 1007 at
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`5.) The 2005 deposition of Mr. Kawashima provides further supporting evidence of
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`authenticity. (Ex. 1010.) Mr. Kawashima’s testimony establishes that: (1) Exhibit
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`1006 is “the current futures options trading system -- trade manual” (compare Ex.
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`1006 at 1, marked “DX 179” with bates numbering “TSE 647-981”; with Ex. 1010,
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`9:19-10:9); (2) confirmed that the document was prepared and disseminated in
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`1998 by the Tokyo Stock Exchange (Ex. 1010, 10:19-24, 12:22-24); (3) that Mr.
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`Patent 7,676,411
`Kawashima had personal knowledge of that, as he “was in charge of preparing this
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`document” (Id. at 11:3); (4) that he prepared Exhibit 1006 in the ordinary course of
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`business, as a regular practice of the Tokyo Stock Exchange (Id. at 11:4-14); and
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`(5) that Exhibit 1006 was maintained thereafter at the Tokyo Stock Exchange in
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`the ordinary course of business. (Id. at 11:15-24.)
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`Petitioner also served supplemental evidence providing additional support
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`that Exhibit 1006 is what it purports to be. This includes evidence that Exhibit
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`1006 is included in the file history of U.S. Patent No. 8,185,467. (Ex. 1053, Sokohl
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`Decl. ¶ 1.) Petitioner also presented evidence that a party offered the same
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`document as Exhibit 179 in a related district court action, Trading Technologies
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`International, Inc. v. eSpeed, Case No. 04-cv- 5312. (Ex. 1006, marked “DX 179”
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`bates “TSE 647-981”.) Further, TT submitted this same, bates-stamped version of
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`the TSE manual to the Patent Office during prosecution of the ’467 patent in an
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`information disclosure statement. (Ex. 1053, Sokohl Decl. ¶ 1.) Accordingly, there
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`is no question that Exhibit 1006 is the TSE manual referred to in the deposition.
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`Furthermore, independent of Kawashima’s 2005 deposition testimony
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`(Exhibit 1010) Petitioner authenticated the TSE manual during Mr. Kawashima’s
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`second deposition. (Ex. 2163, 45:7-46:3.) Thus, regardless of whether his prior
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`testimony is considered, the TSE manual has been properly authenticated.
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`a) Exhibit 1006 has been authenticated under Fed. R. Evid. 901.
`Petitioner has offered evidence that is more than sufficient to support a
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`finding that Exhibit 1006 is what Petitioner claims it is.1 Fed. R. Evid. 901. And
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`Fed. R. Evid. 901(b)(1) provides that “a proponent may authenticate evidence
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`through testimony.” See, e.g., SAP Am., Inc. v. Arunachalam, IPR2013-00195,
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`Paper 60 at 22 (P.T.A.B. Sept. 18, 2014). Mr. Kawashima “was in charge of
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`preparing the document.” (Ex. 1010 at 11:3.) He is, and was, competent to identify
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`it for purposes of authentication. Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir.
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`1980) (“Any person in a position to attest to the authenticity of certain records is
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`competent to lay the foundation for the admissibility of the records; he need not
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`have been the preparer of the record, nor must he personally attest to the accuracy
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`of the information contained in the records.”) See, e.g., EMC Corp. v. Personalweb
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`Techs., LLC, IPR2013-00084, Paper 64 at 44 (May 15, 2014) (rejecting argument
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`that a witness cannot authenticate a document unless he himself authored it).
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`TT’s criticism of the way Mr. Kawashima verified his identification of the
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`TSE manual (based on his personal knowledge about how it was prepared), does
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`not cut against authenticity in a way supported by law. (Paper 109 at 6-7.) Indeed,
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`1 Petitioner responded substantively to TT’s challenge to the printed
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`publication status of the TSE manual in its Reply. (Paper 105 at 13-17.)
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`TT does not cite any legal authority in support of the standard it asks the Board to
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`impose on Mr. Kawashima. Nor does the law require a witness to specify precisely
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`how they would go about confirming their identification of a document, given that
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`a witness need not attest to its complete accuracy. See Rosenberg, 624 F.2d at 665.
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`b) Exhibit 1006 is self-authenticated under Fed. R. Evid. 902(11).
`Additionally, Exhibit 1006 is self-authenticated under Fed. R. Evid. 902(11)
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`because it comes from the business records of the Tokyo Stock Exchange. Mr.
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`Kawashima’s testimony establishes that preparation and maintenance of manuals,
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`such as the TSE manual, was a regularly conducted activity by the Tokyo Stock
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`Exchange. (See, e.g., Ex. 1010, 11:4-24.) Mr. Kawashima was an employee with
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`the requisite knowledge during the relevant timeframe to establish this. (Id. at
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`5:15-21.) Manuals prepared in the ordinary course of business “fall under the
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`business record exception” and “meet the authentication standard.” Dataquill Ltd.
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`v. Handspring, Inc., 2002 WL 31870560 at *3 (N.D. Ill. Dec. 23, 2002).
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`Mr. Kawashima’s testimony stands unrebutted that the TSE manual was
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`prepared and maintained as a regularly conducted activity in the ordinary course of
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`business (Ex. 1010, 11:4-24). Fed. R. Evid. 803(6)(B)-(D). When Mr. Kawashima
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`testified in 2005 as to its authenticity, the TSE manual was only seven years old.
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`(Ex. 1010, 10:19-24.) Fed. R. Evid. 803(6)(A). TT has not shown, nor can it, that
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`“the source of information or the method or circumstances of preparation indicate
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`any lack of trustworthiness.” Fed. R. Evid. 803(6)(E). TT’s suggestion that Mr.
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`Kawashima’s testimony is conclusory does not establish untrustworthiness. (Paper
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`109 at 6-7). And TT’s allegation that Mr. Kawashima is biased is merely self-
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`serving speculation. (Id. at 8.) (See infra Section II.A.3.) Accordingly, all of the
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`requirements for authenticating the TSE manual (Exhibit 1006) as a record of
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`regularly conducted activity are satisfied in this case. Fed. R. Evid. 902(11).
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`c) Exhibit 1006 is authenticated under Fed. R. Evid. 901(b)(4).
`And, although not necessary, the TSE manual is authenticated under Fed. R.
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`Evid. 901(b)(4) which provides that “appearance, contents, substance, internal
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`patterns, or other distinctive characteristics of the item, taken together with all the
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`circumstances” is sufficient to satisfy the Fed. R. Evid. 901(a). Exhibit 1006 shows
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`a distinctive layout with a large number of unique illustrations. Exhibit 1006 also
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`includes the bates numbering applied in connection with the related district court
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`action. (Ex. 1006, marked “DX 179” with bates numbers “TSE 647-981,” and page
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`numbering “1-1,” etc.) This branding is distinctive and confirms the authenticity of
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`Exhibit 1006. A distinctive circumstance here also includes that Mr. Kawashima
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`made himself available for cross-examination in this proceeding. (See infra Section
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`II.A.3.) In view of this, Petitioner has laid a sufficient foundation to establish that
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`Exhibit 1006 is authentic under Fed. R. Evid. 901(b)(4). See, e.g., Ericsson Inc. v.
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`Intellectual Ventures I LLC, IPR2014-00527, Paper 41 at 12 (P.T.A.B. May 18,
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`2015) (finding collection of papers with sequential pages authenticated).
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`Accordingly, because Petitioner properly authenticated the TSE manual in
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`numerous ways, and TT offers no evidence suggesting the TSE manual is not what
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`Petitioner purports it is, TT’s request to exclude Exhibit 1006 should be denied.
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`And even if TT had raised legitimate questions, which TT has not, “[a]ny doubts. .
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`. [go] to the weight and not the admissibility of the [evidence].” United States v.
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`Albert, 595 F.2d 283, 290 (5th Cir.1979), cert. denied, 444 U.S. 963 (1979).
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`3. TT deposed Kawashima twice and still has no basis to dispute Ex.
`1006’s authenticity; alleged bias goes to weight not admissibility.
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`Mr. Kawashima made himself available for cross-examination in this
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`proceeding to answer questions about the TSE manual and his alleged bias. This
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`resolves any hearsay concern with respect to Exhibit 1010. Specifically, Mr.
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`Kawashima addressed his 2005 statements “while testifying at the current trial or
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`hearing” and sat for cross-examination. Fed. R. Evid. 801(c)(1). Accordingly,
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`Exhibit 1010 is not untrustworthy evidence and any hearsay objection has been
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`cured.
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`TT first deposed Mr. Kawashima in 2005, resulting in the transcript offered
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`as Exhibit 1010. Exhibit 1010 authenticates the TSE manual. On March 21, 2016,
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`TT objected to Petitioner’s proffer of Exhibit 1010 on grounds that it amounted to
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`impermissible hearsay. (Paper 30 at 3-4.) Hoping to resolve TT’s objection and
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`avoid this motion, Petitioner made Mr. Kawashima available for cross-examination
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`in this proceeding specifically to allow TT to ask questions about the TSE manual.
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`(Paper 34; Paper 58; Ex. 2163, 26:22-27:25.) The second deposition took place on
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`June 17, 2016. (Ex. 2163.) During this deposition Mr. Kawashima corroborated his
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`prior testimony. (Id. at 45:7-61:2; 43:2-21; 51:6-61:2; Exs. 1054-57.) TT
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`conspicuously omits this testimony and cites virtually nothing from the 2016
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`Kawashima deposition transcript in its motion. Having failed to support a
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`challenge to the veracity or reliability of Mr. Kawashima’s authentication, despite
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`the opportunity to do so, TT has no reasonable basis to question authenticity. TT
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`continues to accuse Mr. Kawashima of being biased merely because he is
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`employed by the Tokyo Stock Exchange. (Paper 109 at 8.) This is unsubstantiated.
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`Despite being given a full and fair opportunity to cross-examine him extensively
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`on his prior testimony and credibility, TT has repeatedly failed to discredit Mr.
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`Kawashima or show that he is biased. Regardless of what TT subjectively believes,
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`TT has failed to support its allegations with facts. The fact is that Mr. Kawashima
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`wrote the TSE manual years before the Tokyo Stock exchange challenged TT’s
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`Japanese patent. (Ex. 2163, 46:12-47:1.) Mr. Kawashima testified that he was not
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`involved in the challenge to the Japanese patent. (Id. at 32:9-13.) Furthermore,
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`TT’s evidentiary objections are improper, as any alleged bias goes to the weight of
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`the testimony, and not its admissibility. Polaris Wireless, Inc. v. Trueposition, Inc.,
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`IPR2013-00323, Paper 62 at 39, 42 (P.T.A.B. Nov. 3, 2014) (weighing alleged bias
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`based on the witness’s position as the “Vice President of Petitioner with significant
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`financial interests” including stock options; concluding that it was not significant).
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`TT also insinuates that counsel for Petitioner told Mr. Kawashima what to
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`say during his June 17, 2016 deposition. (Paper 109 at 8.) This accusation is
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`baseless and contradicted by what Mr. Kawashima actually testified:
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`Q: Did the attorneys yesterday give you advice on how to answer
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`questions?
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`A: They said that I should please answer with what I remember.
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`Q: And did you have any disagreements with the attorneys yesterday?
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`A: I didn’t – I wasn’t talking about my opinions. I was simply talking
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`about facts yesterday.
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`(Ex. 2163, 15:16-23.)
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`In sum, despite having two full and fair opportunities to cross-examine Mr.
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`Kawashima on the TSE manual, TT still fails to point out any inconsistency or
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`infirmity in his prior testimony. This cuts directly against TT’s contention that “the
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`2005 Kawashima deposition transcript ultimately raises additional doubts as to the
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`authenticity of the document.” (Paper 109 at 6-7.) It does not. And TT’s attempts
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`to discredit Mr. Kawashima’s sworn testimony with attorney argument, rather than
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`successful cross-examination, only further cements its authenticity and veracity.
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`But even if the Board deems the 2005 Kawashima deposition transcript
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`(Exhibit 1010) to be hearsay, it readily satisfies the residual exception. Fed. R.
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`Evid. 807. Exhibit 1010 is a professionally prepared deposition transcript taken
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`before a notary public pursuant to the Fed. R. Civ. P. (Ex. 1010 at 1.) There is no
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`dispute that the deposition occurred when and where it did, and that Exhibit 1010
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`is a true and correct copy of what transpired. (Paper 109 at 3-5.) Mr. Kawashima
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`gave his statement under oath. (Ex. 1010, 5:1-4.) As such, Exhibit 1010 “has
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`equivalent circumstantial guarantees of trustworthiness.” Fed. R. Evid. 807(a)(1).
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`Exhibit 1010 is also more probative than any other evidence Petitioner can obtain
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`through reasonable efforts because it was taken close in time to when the TSE
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`manual was prepared and disseminated. Fed. R. Evid. 807(a)(2), (3).2 Finally,
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`admitting Exhibit 1010 is in the interests of justice because it will provide as
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`complete a record as possible regarding the TSE manual. Fed. R. Evid. 807(a)(4).
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`B.
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`The testimony is highly probative and admissible.
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`TT urges the Board to exclude choice portions of two deposition transcripts,
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`one involving TT’s declarant Dan Olsen (Ex. 1051 at 57-58) and the other
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`2 TT complains that Petitioner initially opposed their request to depose Mr.
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`Kawashima in these proceedings (Paper 109 at 6-7), but TT does not explain why
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`this matters—given that Mr. Kawashima ultimately did make himself available.
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`involving TT’s declarant Christopher Thomas (Ex. 1052 at 393-397). TT’s
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`argument can be summed up as seeking to exclude unfavorable testimony and
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`otherwise using this Motion to Exclude as an unauthorized sur-reply to argue the
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`merits of whether “the claimed inventions do not improve computers.” (Paper 109
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`at 9, 15.)
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`Fed. R. Evid. 403 provides that evidence may be excluded if its probative
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`value is substantially outweighed by the danger of unfair prejudice, confusing the
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`issues, misleading the fact-finder, undue delay, wasting time, and/or presenting
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`needlessly cumulative evidence. Here, the material sought to be excluded consists
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`of factually true admissions explaining how the claims are not directed to various
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`technological improvements. These admissions are highly probative of patent
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`eligibility. In turn, TT appears to rely on the “unfair prejudice,” “confusing” and
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`“misleading” aspects of Fed. R. Evid. 403. But there is simply no danger of
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`confusing or misleading the Board. The Board is perfectly capable of according
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`these admissions appropriate weight in view of all the evidence. And TT has failed
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`to demonstrate even a remote likelihood that the statements will be misinterpreted
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`or misunderstood. TT may disagree with the legal conclusions to be drawn from
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`these admissions; however, that is not a cognizable basis for excluding evidence.
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`TT has exhausted its opportunities to brief the merits and rehabilitate its
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`experts with explanations such as “[r]ather than admitting the claimed inventions
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`do not improve computers, [Mr. Olsen/Mr. Thomas] was simply stating what was
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`not explicitly recited by the claims.” (Paper 109 at 10, 15.) This argument has
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`nothing to do with balancing probative value and unfair prejudice under Fed. R.
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`Evid. 403; it is an improper attempt to explain away highly probative admissions.
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`And, as a general policy, it is not unfairly prejudicial to place the burden of
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`seeking clarification on the testifying expert. In fact, this has long been the Board’s
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`practice.3 Here, counsel for Petitioner properly instructed the witness. (See, e.g.,
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`Ex. 1051, Olsen Dep. Tr., 6:9-17; Ex. 1052, Thomas Dep. Tr., 5:21-6:7.) Having
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`been instructed, and free to seek clarification as needed, the answers provided are
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`3 Cf. U.S. PATENT & TRADEMARK OFFICE, Standing Order of January 3, 2006
`
`Governing Contested Cases Assigned to Trial Division, Board of Patent Appeals
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`and Interferences, Cross Examination Guidelines, Appendix, p. 72 (Jan. 2006),
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`available https://www.uspto.gov/web/offices/dcom/bpai/Standing-Order.pdf
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`(“Guideline [1] At the beginning of a cross examination, the party conducting the
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`cross examination must instruct the witness on the record to ask deposing counsel,
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`rather than the witness’s own counsel, for clarifications, definitions or explanations
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`of any words, questions or documents presented during the cross examination. The
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`witness must follow these instructions.”) See also Hall v. Clifton Precision, 150
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`F.R.D. 525 (E.D. Pa. 1993) (serving as the model for the Standing Order).
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`in accordance with the ground rules for cross-examination. TT’s attempt to erase
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`truthful, albeit unfavorable, responses given by its experts should be denied.
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`III. Conclusion
`The Board should deny TT’s Motion to Exclude.
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`
`
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`
`
`
`
`
`
`/Richard M. Bemben/
`
`
`Date: October 7, 2016
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
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`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that the foregoing PETITIONER’S
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`OPPOSITION TO PATENT OWNER’S MOTION TO EXCLUDE and all
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`associated exhibits were served electronically via e–mail on October 7, 2016, in
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`their entireties 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.
`
`
`/Richard M. Bemben/
`
`
`
`
`
`Date: October 7, 2016
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`
`
`
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
`
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