Paper: _____
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`Filed: November 19, 2015
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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.,
`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 MOTION FOR
` ADDITIONAL DISCOVERY
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`Filed: November 19, 2015
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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.,
`IBFX, INC.
`
`Petitioner
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2015-00181
`U.S. Patent 7,676,411 B2
`_________________
`
`PATENT OWNER’S MOTION FOR
` ADDITIONAL DISCOVERY
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`
`CONTENTS
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`BACKGROUND ............................................................................................ 2
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`
`I.
`
`II. TT PRESENTS GOOD CAUSE FOR ADDITIONAL
`DISCOVERY UNDER THE BLOOMBERG FACTORS .......................... 3
`A. More Than a Mere Possibility or Allegation that Something
`Useful Will Be Found Exists Because Petitioners and CQG
`Jointly Acknowledged CQG “Is Preparing” the ’411 Petition ............. 3
`
`1.
`
`2.
`
`Petitioners and CQG Acknowledge That CQG Prepared
`the ’411 Petition .......................................................................... 4
`
`The Board Previously Determined That Preparation of a
`Petition by a Non-Identified Party Implicates Real Party-
`in-Interest Concerns .................................................................... 6
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`TT Does Not Seek Litigation Positions or Underlying Bases .............. 8
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`TT Cannot Generate the Equivalent Information by Other
`Means .................................................................................................... 9
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`TT’s Instructions Are Easily Understandable ....................................... 9
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`TT’s Request Is Not Overly Burdensome ...........................................10
`
`B.
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`C.
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`D.
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`E.
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`III. THE REASONS FOR THE BOARD’S DENIAL IN CBM2015-
`00161 HAVE BEEN ADDRESSED ...........................................................11
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`IV. TT DOES NOT SEEK PRIVILEGED INFORMATION .......................12
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`V. CONCLUSION ............................................................................................14
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`
`
`ii
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`TABLE OF AUTHORITIES
`
`Case CBM2015-00181
`U.S. Patent 7,676,411
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`
` Page(s)
`
`Cases
`Bethune-Hill v. Va. State Bd. of Elections,
`-- F. Supp. 3d --, 2015 WL 3404869 (E.D. Va. May 26, 2015) ......................... 12
`
`In re Echostar Commc’ns Corp.,
`448 F.3d 1294 (Fed. Cir. 2006) .................................................................... 12, 13
`
`In re Grand Jury Subpoenas,
`902 F.2d 244 (4th Cir. 1990) .............................................................................. 13
`
`Taylor v. Sturgell,
`553 U.S. 880 (2008) .............................................................................................. 5
`
`U.S. v. Jones,
`696 F.2d 1069 (4th Cir. 1982) ............................................................................ 12
`
`Board Authority
`Bloomberg Inc. v. Markets-Alert Pty. Ltd.,
`CBM2013-00005, Paper 32 (May 29, 2013) .................................................... 3, 8
`
`Garmin International, Inc. v. Cuozzo Speed Technologies LLC,
`IPR2012-00001, Paper 26 (Mar. 5, 2013) ...................................................... 3, 11
`
`In re Guan, Control No. 95/001,045, Decision Vacating Filing Date,
`2008 WL 10682851 (P.T.O. Aug. 25, 2008) ................................................ 4, 7, 8
`
`Reflectix, Inc. v. Promethean Insulation Technology LLC,
`IPR2015-00039, Paper 18 (Apr. 24, 2015) ....................................................... 6, 8
`
`RPX Corp. v. VirnetX Inc.,
`IPR2014-00171, Redacted Order, Paper 57 (June 5, 2014) ..................... 6, 7, 8, 9
`
`RPX Corp. v. VirnetX,
`IPR2014-00171, Paper 25 (Feb. 10, 2014) ......................................................... 12
`
`Tradestation v. Trading Techns.,
`CBM2015-00161, Paper 20 (Oct. 13, 2015) .................................................. 9, 10
`iii
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`Federal Statutes
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`35 U.S.C. § 322(a)(2) ............................................................................................. 2, 3
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`Rules
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`Fed. R. Civ. P. 11(b) .............................................................................................. 2, 6
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`Fed. R. Civ. P. 26(b)(3) ............................................................................................ 13
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`Regulations
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`37 C.F.R. § 42.224(a) ................................................................................................. 3
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`37 C.F.R. § 42.302(c) ................................................................................................. 3
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`Trial Practice Guide, 77 Fed. Reg. 48756 (Aug. 14, 2012) ..............................passim
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`iv
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`As authorized by the Board during the conference call held November 13, 2015
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`(Ex. 2001 at 26:1-6) and in the order of November 17, 2015 (Paper 15 at 3), Patent
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`Owner Trading Technologies International, Inc. (“TT”) hereby moves for
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`additional discovery related to the real parties-in-interest (“RPI”) in this
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`proceeding. TT requests the following discovery from Petitioners:
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`All communications (including emails) and agreements between
`Tradestation and CQG; IBG and CQG; or Tradestation, IBG, and
`CQG related to the filing, preparation, or funding of any post-grant
`proceeding (filed or anticipated) against TT’s U.S. Patent No.
`7,676,411, including but not limited to communications and
`agreements that led Tradestation, IBG, and CQG to represent that
`CQG was preparing the petition against TT’s ’411 patent
`(CBM2015-00161, Ex. 2003 at 8), and documents referencing such
`communications and agreements with CQG related to any post-
`grant review of the ’411 patent.
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`The Board should grant this discovery because Petitioners jointly certified to
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`the district court that, as part of a coordinated strategy to attack TT’s patents, CQG
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`was preparing the petition against the ’411 patent; but CQG has not been named as
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`an RPI. The failure to name CQG is dispositive—if CQG is an RPI, the statute bars
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`institution. While Petitioners’ admissions in litigation alone should be sufficient to
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`find RPI, the RPI inquiry is fact dependent and TT requires this discovery to better
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`prepare it Patent Owner Preliminary Response. Trial Practice Guide, 77 Fed.
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`
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`1
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`
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`Reg. 48756, 48760 (Aug. 14, 2012).
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`I.
`
`BACKGROUND
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`TT sued Petitioners for patent infringement in February 2010, alleging
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`infringement of U.S. Patent No. 7,676,411 (“the ’411 patent”) and other patents. At
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`the same time, TT also sued CQG on several patents, including the ‘411 patent.
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`CQG and Petitioners remain defendants in these pending litigations, forming a
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`litigation defense group that often files joint papers.
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`In July 2015, after the Board dismissed TD Ameritrade v. Trading
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`Technologies, CBM2015-00133, Petitioners and CQG twice certified to the district
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`court that they are coordinating to file petitions at the U.S. Patent Office. See Ex.
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`2002 at 3; Ex. 2003 at 8; see also Fed. R. Civ. P. 11(b) (requiring representations
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`to a court to have factual support). In these papers, Petitioners and CQG requested
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`relief based upon the certification that “for its part” of the coordination, CQG “is
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`preparing” the petition against the ’411 patent (among others). Ex. 2003 at 8. In
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`addition to this coordination, Petitioners admit to coordinating with CQG in at least
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`two other filed matters already—represented by the same counsel as this
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`proceeding—where CQG is identified as an RPI: CBM2015-00179 and CBM2016-
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`0009. Based on this evidence of Petitioners and CQG’s coordination, CQG is an
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`RPI to this proceeding as well, which precludes institution of the petition for
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`failure to name all RPIs under 35 U.S.C. § 322(a)(2). The proper identification of
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`2
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`RPI is a threshold issue under 35 U.S.C. § 322(a)(2) and 37 C.F.R. § 42.302(c).
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`Accordingly, addressing the issue of RPI early in the proceeding is warranted. See
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`Trial Practice Guide, 77 Fed. Reg. at 48759.
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`II. TT PRESENTS GOOD CAUSE FOR ADDITIONAL DISCOVERY
`UNDER THE BLOOMBERG FACTORS
`Requests for additional discovery may be granted if the party seeking
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`discovery shows “good cause as to why the discovery is needed.” 37 C.F.R.
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`§ 42.224(a). Here, there is good cause for TT to obtain discovery related to factual
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`matters surrounding acknowledged coordination and Petitioners’ and CQG’s
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`certification that CQG was preparing the petition against the ’411 patent. When
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`deciding whether to grant additional discovery in CBM proceedings, the Board
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`generally applies the same five factors from Garmin International, Inc. v. Cuozzo
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`Speed Technologies LLC, IPR2012-00001, Paper 26 (Mar. 5, 2013), with “slight[]”
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`modifications to reflect the lower standard. Bloomberg Inc. v. Markets-Alert Pty.
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`Ltd., CBM2013-00005, Paper 32 at 4 (May 29, 2013). Because each of the
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`Bloomberg factors is satisfied here, TT’s request should be granted.
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`A. More Than a Mere Possibility or Allegation that Something
`Useful Will Be Found Exists Because Petitioners and CQG Jointly
`Acknowledged CQG “Is Preparing” the ’411 Petition
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`“[T]he ‘real party-in-interest’ is the party that desires review of the patent.”
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`Trial Practice Guide, 77 Fed. Reg. at 48759. An RPI includes a “party or parties at
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`3
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`U.S. Patent 7,676,411
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`whose behest the petition has been filed.” Id.; In re Guan, Control No. 95/001,045,
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`Decision Vacating Filing Date, 2008 WL 10682851, at *8 (P.T.O. Aug. 25, 2008)
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`(“An entity named as the sole real party in interest may not receive a suggestion
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`from another party that a particular patent should be the subject of a request for
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`inter partes reexamination and be compensated by that party for the filing of the
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`request for inter partes reexamination of that patent without naming the party who
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`suggest[ed] and compensated the entity for the filing of a request for inter partes
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`reexamination of the patent.”). The evidence presently available to TT implicates
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`CQG as an RPI because the litigation defense group informed the district court that
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`that CQG was preparing the petition against the ’411 patent, CQG has an ongoing
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`interest in the outcome of this proceeding, and CQG has coordinated with
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`Petitioners with respect to other USPTO filings using the same counsel. Given that
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`CQG and Petitioners admitted to coordinating this petition prior to filing and
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`affirmatively stated that CQG was preparing the petition, more than a mere
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`possibility or allegation exists that the litigation defense group exchanged
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`communications regarding that coordinated effort. This information will be useful
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`to demonstrate how CQG should have been named as an RPI.
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`1.
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`Petitioners and CQG Acknowledge That CQG Prepared the
`’411 Petition
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`Petitioners admit that they are coordinating filing strategies with CQG by
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`4
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`working together to prepare petitions against TT’s patents. As one example, the
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`litigation defense group (Petitioners and CQG) submitted joint briefs to the district
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`court requesting “a short period of time to coordinate on these PTAB actions.” Ex.
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`2002 at 3 (emphasis added). As part of this coordinated effort in requesting that a
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`stay be maintained, Petitioners and CQG certified that “[f]or CQG’s part, it is
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`preparing to file CBMR petitions on the ’411 . . . patent[],” among others. Ex.
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`2003 at 8 (emphasis added). CQG’s action was stated in the present tense—that
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`preparation of the ’411 petition by CQG had begun. Thus, Petitioners and CQG
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`admitted to the district court that CQG prepared, or at least assisted with preparing,
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`the petition for the ’411 patent. Control or the opportunity to control preparation of
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`a petition is an important factor in determining RPI. Trial Practice Guide, 77 Fed.
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`Reg. at 48,759; Taylor v. Sturgell, 553 U.S. 880, 895 (2008). Here, Petitioners and
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`CQG have affirmatively stated that CQG possessed control over the petition for the
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`’411 patent.
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`To make these statements, Petitioners and CQG must have communicated
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`with each other regarding the ’411 patent. TT seeks communications and
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`agreements that relate to this coordination of post-grant reviews against the ’411
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`patent. The admitted communications in which Petitioners and CQG “coordinate
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`on these PTAB actions” to decide that CQG “is preparing to file” a petition against
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`the ’411 patent is a fact that should be considered when determining whether CQG
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`5
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`is an RPI. Ex. 2002 at 3; Ex. 2003 at 8. Such communications necessarily exist
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`because, prior to filing Exhibits 2002 and 2003 with the district court, Petitioners
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`and CQG determined that CQG would prepare petitions against four of TT’s
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`patents, including the ’411 patent for which CQG prepared the petition. Indeed,
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`when filing the document in the district court requesting that the stay be
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`maintained, each party in the litigation group certified that their “factual
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`contentions have evidentiary support,” Fed. R. Civ. P. 11(b)(3), which includes the
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`assertion that CQG “is preparing” the petition on the ’411 patent, Ex. 2003 at 8. TT
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`and the Board can assume that this certification was properly made, and therefore,
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`there are factual bases for this statement. TT seeks to discover those bases.
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`2.
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`The Board Previously Determined That Preparation of a
`Petition by a Non-Identified Party Implicates Real Party-in-
`Interest Concerns
`The Board’s previous decisions in RPX Corp. v. VirnetX Inc., IPR2014-
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`00171,1 and Reflectix, Inc. v. Promethean Insulation Technology LLC, IPR2015-
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`00039,2 illustrate why discovery is warranted in this case.
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`1 Similar decisions were issued in parallel proceedings IPR2014-00172
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`through IPR2014-00177.
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`2 Similar decisions were issued in parallel proceedings IPR2015-00042, -00044,
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`-00045, and -00047.
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`6
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`In RPX, Apple and RPX held discussions in which RPX agreed “to
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`challenge patents of questionable quality through post-grant proceedings at the
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`U.S. Patent and Trademark Office” and retained Apple’s counsel who had prepared
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`the previous petitions. Redacted Order, Paper 57 at 4-5 (June 5, 2014). RPX then
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`filed the petitions prepared by Apple. After RPX filed its petitions, VirnetX sought
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`additional discovery, which the Board granted. RPX, IPR2014-00171, Redacted
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`Motion for Additional Discovery, Paper 18 (Jan. 27, 2014); Order, Paper 33 (Feb.
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`20, 2014). In its decision regarding RPI, the Board applied In re Guan and
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`explained that an “entity named as the sole real party in interest may not receive a
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`suggestion from another party that a particular patent should be the subject of a
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`request for inter partes reexamination and be compensated by that party for the
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`filing of the request . . . without naming the party who suggested the inter partes
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`reexamination” as a real party in interest. Paper 57 at 7 (emphasis removed)
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`(quoting In re Guan, Reexam Control No. 95/001,045 (Aug. 25, 2008)).
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`Here, Petitioners acknowledges that CQG prepared or participated in
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`preparing the petition against the ’411 patent. Ex. 2003 at 8; see also CBM2015-
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`00161 Ex. 2010 at 12:19-13:2. (“There’s also no question that in at least one case
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`that CQG and Petitioners in this case have cooperated. We filed for co-petitioners
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`on it, on a -- the petition for the -- CBM petition for the ’056 patent. We can see
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`that. We don’t deny it.”). CQG’s preparation of the petition, like Apple’s
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`7
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`preparation of the petition filed by RPX, makes CQG and RPI in this proceeding.
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`The admitted coordination discussions necessarily relate to the statements that
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`CQG “is preparing” the ’411 patent petition demonstrate the need for additional
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`discovery whether CQG is an RPI under In re Guan and RPX. Discovery should be
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`granted to develop the facts surrounding CQG’s participation and the extent of
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`CQG’s control.
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`In Refletix, the Board held that a party who prepared and funded a petition
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`was an RPI, even where that party later lost its ability to control the petition or
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`proceeding prior to filing. Reflectix, IPR2015-00039, Paper 18 at 10-11 (Apr. 24,
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`2015). Reflectix explains that the RPI question is one that turns on each proceeding
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`and the relationship of the parties. Even if the non-listed party withdraws its ability
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`to control, the existence of control or the ability to control prior to that withdrawal
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`does not preclude the party from being an RPI. Id.
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`The underlying communications that led affirmative statements about
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`CQG’s participation in preparing the petition will be “useful” to TT in preparing its
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`defenses because these communication will likely be “favorable in substantive
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`value” to TT’s contention that CQG is an unnamed RPI in this proceeding.
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`Bloomberg, CBM2013-00005, Paper 32 at 5.
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`TT Does Not Seek Litigation Positions or Underlying Bases
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`B.
`TT is not seeking litigation positions or underlying bases. TT seeks the
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`8
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`U.S. Patent 7,676,411
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`factual communications and agreements related to how the litigation defense group
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`determined that CQG would prepare the petition against the ’411 patent,
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`communications related to the timing, division, or funding of that preparation, and
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`the determination that CQG would not be listed as an RPI. TT’s requests do not
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`implicate district court litigation positions or litigation strategies by either
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`Petitioners or CQG. Nor do TT’s requests implicate legal theories related to the
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`substance of the challenges set forth in the petition or to Petitioners’ or CQG’s
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`positions in any proceedings. The Trial Practice Guide makes clear that work
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`product related to the merits can be redacted, but agreements and discussions about
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`the factual logistics of preparation and filing are discoverable, as they were in RPX.
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`C. TT Cannot Generate the Equivalent Information by Other Means
`The documents sought are neither public nor publicly available, as the Board
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`recognized in CBM2015-00161, Paper 20 (Oct. 13, 2015). TT seeks
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`communications and agreements between CQG and Petitioners related to the filing
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`of the ’411 petition and the communications and agreements that led the litigation
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`defense group to state that CQG was preparing the ’411 petition. TT is not a party
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`to these communications or agreements and cannot access them, except through
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`the requested discovery.
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`D. TT’s Instructions Are Easily Understandable
`TT’s request is straightforward, as the Board acknowledged in CBM2015-
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`9
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`00161. TT seeks communications and agreements between CQG and TradeStation
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`that relate to the logistical preparation and filing of the ’411 petition and why the
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`litigation defense group collectively stated that CQG was preparing the petition.
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`Ex. 2004, e-mail from K. Rodkey to R. Sokohl dated Oct. 19, 2015. TT’s request is
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`easily understood, as the Board has already acknowledged. Tradestation v. Trading
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`Techns., CBM2015-00161, Paper 20 at 10 (“We are persuaded that the request
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`comprises an instruction that is easily understandable . . . .”). To the extent
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`Petitioners believe there is ambiguity or a lack of clarity, TT will work with
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`Petitioners to clarify the scope of the request. Because TT also requests email
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`communications, in accordance with the Trial Practice Guide, once the Board
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`grants the additional discovery, TT will work with Petitioners to limit the scope of
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`the search to certain custodians and search terms. 77 Fed. Reg. at 48,772, App’x C,
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`¶¶ 6, 9 (stating that email production requests require authorization of the Board
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`and setting forth the scope of such requests after authorization).
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`TT’s Request Is Not Overly Burdensome
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`E.
`TT’s request is not burdensome and production should not inconvenience
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`Petitioners. Although the requested documents will detail the coordination between
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`CQG and Petitioners, the volume is not expected to be large or difficult to produce.
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`Such documents would normally be stored electronically and could easily be
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`produced to TT. Accordingly, the time and burden on Petitioners should be
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`10
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`negligible. See Garmin, IPR2012-00001, Paper 26 at 7.
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`III. THE REASONS FOR THE BOARD’S DENIAL IN CBM2015-00161
`HAVE BEEN ADDRESSED
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`In CBM2015-00161, the Board denied TT’s request for additional discovery
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`generally covering communications and agreements of all TT proceedings by the
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`litigation defense group. The Board’s denial was premised on two primary
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`determinations: (1) that the requests were not limited to the ’304 patent at issue in
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`that proceeding and (2) that there was insufficient evidence set forth that the
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`discovery sought would produce communications related to the ’304 patent. Both
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`of these have considerations are not applicable to TT’s present request.
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`First, TT’s request in this proceeding is specifically limited to the ’411
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`patent and to communications and agreements between Petitioners and CQG and
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`specifically related specifically to “filing, preparation, or funding” against the ’411
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`patent. Thus, TT has tailored the scope of its request to specific information related
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`to CQG and post-grant proceedings against it specific to the ’411 patent.
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`Second, there is specific evidence that CQG prepared the petition against the
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`’411 patent. The litigation defense group admitted that, when it filed its brief in
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`Exhibit 2003, that CQG “is preparing,” in the present tense. In making contention,
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`the litigation defense group was required to certify that the contention has
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`“evidentiary support.” Fed. R. Civ. P. 11(b)(3). Thus, unlike CBM2015-00161,
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`11
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`where the Board found that there was insufficient evidence that there were
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`communications related to the ’304 petition, here Petitioners and CQG
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`acknowledge that specific coordination and communications were carried out with
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`respect to the ’411 patent. CQG was not only part of that coordination, but is
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`acknowledged to have prepared, or assisted in preparing, the petition.
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`IV. TT DOES NOT SEEK PRIVILEGED INFORMATION
`TT’s requests do not seek to discover privileged information. The Board has
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`previously permitted discovery of communications between a petitioner and a third
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`party with respect to RPI issues. RPX Corp. v. VirnetX, IPR2014-00171, Paper 33
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`at 3. Petitioners should not be able to object on the basis of privilege in an attempt
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`to selectively disclose certain information while withholding other information.
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`See In re EchoStar Commc’ns Corp., 448 F.3d 1294, 1301 (Fed. Cir. 2006). Nor is
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`any privilege or protection applicable here.
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`With respect to attorney-client privilege, the doctrine requires, among other
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`things, that “the asserted holder of the privilege is or sought to become a client”
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`and that the communication is “for the purpose of securing primarily either (i) an
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`opinion on law or (ii) legal services or (iii) assistance in some legal proceeding,
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`and not for the purpose of committing a crime or tort.” Bethune-Hill v. Va. State
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`Bd. of Elections, -- F. Supp. 3d --, 2015 WL 3404869, at *17 (E.D. Va. May 26,
`
`2015) (quoting U.S. v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)). Petitioners
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`12
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`have not asserted that CQG is a client of Petitioners’ counsel in this proceeding,
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`
`
`and therefore the threshold requirement—client communication—is not met.
`
`To the extent Petitioners assert a joint defense or common interest privilege,
`
`that privilege is an extension of attorney-client privilege and requires satisfying the
`
`applicable requirements of another privilege. In re Grand Jury Subpoenas, 902
`
`F.2d 244, 249 (4th Cir. 1990) (“the joint defense or common interest rule
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`presupposes the existence of an otherwise valid privilege”). As explained above,
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`satisfying the requisite prongs of attorney-client privilege implicates CQG as an
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`RPI.
`
`The work product doctrine protects “‘documents and tangible things’
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`prepared in anticipation of litigation that are both non-privileged and relevant.” In
`
`re EchoStar, 448 F.3d at 1301 (citing Fed. R. Civ. P. 26(b)(3)). This doctrine,
`
`however, “is not absolute” and “a party may discover certain types of work product
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`if they have a ‘substantial need of the materials in the preparation of the party's
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`case and that the party is unable without undue hardship to obtain the substantial
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`equivalent . . . by other means.’” In re EchoStar, 448 F.3d at 1301-02; Fed. R. Civ.
`
`P. 26(b)(3). This exception permits discovery of “factual” and “non-opinion” work
`
`product, but does not allow discovery of “mental impressions, conclusions,
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`opinions, or legal theories of an attorney or other representative.” In re EchoStar,
`
`448 F.3d at 1302; Fed. R. Civ. P. 26(b)(3). TT seeks factual information about
`
`
`
`13
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`Petitioners’ coordination with CQG with respect to petitions against the ’411
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`
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`patent and the litigation defense group’s statement that CQG was preparing this
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`petition.
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`To the extent any requested document contains privileged or work product
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`information, the Board should grant the discovery, and Petitioners can redact the
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`privileged portions and provide a detailed privilege log so that TT and the Board
`
`can evaluate the privilege claim.
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`V. CONCLUSION
`TT has shown that good cause for additional discovery exists and each of the
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`Bloomberg factors is satisfied. Therefore, TT requests that the Board order
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`Petitioners to produce the following documents and a privilege log for any
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`withheld or redacted documents:
`
`All communications (including emails) and agreements between
`Tradestation and CQG; IBG and CQG; or Tradestation, IBG, and
`CQG related to the filing, preparation, or funding of any post-grant
`proceeding (filed or anticipated) against TT’s U.S. Patent No.
`7,676,411, including but not limited to communications and
`agreements that led Tradestation, IBG, and CQG to represent that
`CQG was preparing the petition against TT’s ’411 patent
`(CBM2015-00161, Ex. 2003 at 8), and documents referencing such
`communications and agreements with CQG related to any post-grant
`review of the ’411 patent.
`
`
`
`14
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`
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`Dated: November 19, 2015
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`
`
`Respectfully submitted,
`
`By: /Kevin D. Rodkey/
`Kevin D. Rodkey, Back Up Counsel
`Reg. No. 65,506
`
`Counsel for Patent Owner
`Trading Technologies International, Inc.
`
`
`
`
`
`15
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`
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`CERTIFICATE OF SERVICE
`
`Case CBM2015-00181
`U.S. Patent 7,676,411
`
`The undersigned hereby certifies that a copy of the foregoing Patent
`
`Owner’s Motion for Additional Discovery was served on November 19, 2015,
`
`via email directed to counsel of record for the Petitioners at the following:
`
`
`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori Gordon
`lgordon-ptab@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`PTAB@skgf.com
`
`
`
`Date: November 19, 2015
`
`/Lisa C. Hines/
`Lisa C. Hines
`Litigation Clerk
`
`Finnegan, Henderson, Farabow, Garrett &
`Dunner, LLP
`
`
`
`16
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