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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`IBG LLC, INTERACTIVE BROKERS LLC, TRADESTATION GROUP,
`INC., TRADESTATION SECURITIES, INC., TRADESTATION
`TECHNOLOGIES, INC., AND IBFX, INC.,
`Petitioners
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`____________________
`
`CBM2015-00181
`Patent 7,676,411 B2
`____________________
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`PETITIONERS’ OPPOSITION TO
`PATENT OWNER’S MOTION FOR ADDITIONAL DISCOVERY
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`I.
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`II.
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`CBM2014-00181
`Patent 7,676,411 B2
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`Table of Contents
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`Introduction ...................................................................................................... 1
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`Statement of Relevant Facts ............................................................................ 3
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`III. TT’s motion fails to establish good cause under the Garmin/Bloomberg
`factors, and thus additional discovery is not warranted. ................................. 4
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`A.
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`TT has not shown more than a mere possibility or allegation that
`something useful will be found (first Garmin/Bloomberg factor). ....... 5
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`1.
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`2.
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`The first statement TT relies on merely indicates that the co-
`defendants were coordinating some aspects of their defense
`against the numerous patents that TT asserted against them. ..... 5
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`The second statement that TT relies on merely indicates that
`CQG was preparing a petition against the ’411 patent, not the
`petition that was filed in this proceeding. ................................... 8
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`B.
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`TT’s request is overly broad because it seeks communications related
`to anticipated filings, which have no bearing on whether CQG is an
`RPI in this proceeding (second Garmin/Bloomberg factor). ..............10
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`C.
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`RPX and Reflectix are inapposite. .......................................................11
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`IV. Conclusion .....................................................................................................14
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`Cases
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`Table of Authorities
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`CBM2014-00181
`Patent 7,676,411 B2
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`Bloomberg, Inc. v. Market-Alerts Pty, Ltd.,
`CBM2013-00005 (PTAB May 29, 2013) ....................................................1, 4
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`Garmin Int’l, Inc. v. Cuozzo Speed Techs. LLC,
`IPR2012-00001 (PTAB Mar. 5, 2013) ........................................................1, 4
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`Hamilton Beach Brands, Inc. v. Courtesy Products, LLC
`IPR2014-01257 (PTAB Oct. 15, 2014) .........................................................10
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`Petroleum Geo-Servs. Inc. v. WesternGenco LLC,
`IPR2014-00687 (PTAB Dec. 15, 2014) .......................................................... 6
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`Reflectix, Inc. v. Promethean Insulation Technology LLC
`IPR2015-00039 (PTAB April 24, 2015) .......................................... 11, 12, 13
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`RPX Corp. v. VirnetX Inc.,
`IPR2014-00171 (PTAB Jan. 27, 2014) .....................................................9, 11
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`TradeStation Group, Inc. v. TT,
`CBM2015-00161 (PTAB Oct. 13, 2015) ..................................................2, 12
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`Other Authorities
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`Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48760 ............................... 6
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`Regulations
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`37 C.F.R. § 42.224 ..................................................................................................... 4
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`I.
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`Introduction
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`CBM2014-00181
`Patent 7,676,411 B2
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`The Board should deny Trading Technologies International, Inc.’s (TT)
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`Motion for Additional Discovery (“Motion”) because TT provides no support for
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`its argument that CQG is a real-party-in-interest (“RPI”). The Board requires a
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`party seeking additional discovery to demonstrate: (i) more than a “mere allegation
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`that something useful will be found” and (ii) that the requested discovery is not
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`“overly burdensome to answer” or is “sensible and responsibly tailored according
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`to a genuine need.” See Garmin Int’l, Inc. v. Cuozzo Speed Techs. LLC, IPR2012-
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`00001, Paper 26 at 6-7 (PTAB Mar. 5, 2013) (“Garmin”) (informative), as
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`modified by Bloomberg, Inc. v. Market-Alerts Pty, Ltd., CBM2013-00005, Paper
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`32 at 4 (PTAB May 29, 2013) (“Bloomberg”). TT has not met these factors, failing
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`to identify any relevant evidence that discovery will uncover anything “useful.” Id.
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`TT premises its entire motion on two statements made by Petitioners1 in a
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`joint filing in the district court. Specifically, Petitioners and CQG informed the
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`district court that they were coordinating to file petitions at the PTAB to challenge
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`the numerous patents that TT asserted against them and that CQG was preparing a
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`1 IBG LLC and Interactive Brokers LLC (collectively “IBG”); and
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`TradeStation Group, Inc., TradeStation Securities, Inc., TradeStation
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`Technologies, Inc., and IBFX, Inc. (collectively “TradeStation”).
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`CBM2014-00181
`Patent 7,676,411 B2
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`petition to challenge the ’411 patent (as well as petitions to challenge other TT
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`patents). TT twists and contorts these two statements to create the false impression
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`that CQG participated as an RPI in the present proceeding.
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`This argument is not new for the Board. TT made the same argument in
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`CBM2015-00161. The Board considered TT’s position and denied the request for
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`additional discovery stating “we are persuaded that Patent Owner fails to show a
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`threshold amount of evidence or reasoning tending to show beyond speculation
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`that something useful will be discovered.” TradeStation Group, Inc. v. TT,
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`CBM2015-00161, Paper 20 at 7 (PTAB Oct. 13, 2015).
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`Moreover, like its requests in CBM2015-00161, TT’s requests fail the
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`second Garmin/Bloomberg factor. TT seeks communications between Petitioners
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`and CQG related to anticipated filings against the ’411 patent. Such
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`communications have no bearing on whether CQG is an RPI in this proceeding.
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`TT presents nothing that even hints at any funding and control by CQG over
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`this proceeding. For these reasons, TT has not shown that the requested additional
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`discovery meets the Garmin/Bloomberg factors that require more than a mere
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`allegation that something useful will be found, and that the requested discovery is
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`reasonably tailored to a genuine need. Id.
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`II.
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`Statement of Relevant Facts
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`CBM2014-00181
`Patent 7,676,411 B2
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`TT asserted the ’411 patent and several other patents against various
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`entities—including Petitioners and CQG—in 2010 in several cases filed in the
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`Northern District of Illinois. TD Ameritrade, another defendant in those litigations,
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`filed CBM review petitions against the ’411 patent and four other asserted TT
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`patents. The Board instituted CBM review on four of the five TD Ameritrade
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`petitions, including against the ’411 patent, which led the district court to stay the
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`co-pending litigation. But shortly before the hearing in these CBM reviews, TD
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`Ameritrade and TT settled, and the Board terminated those proceedings.
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`Thereafter, TT filed an “emergency” motion to lift the stay in the district
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`court. In a July 15, 2015 Response to this emergency motion, Petitioners and CQG
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`informed the district court that they planned “to request that the PTAB decide the
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`validity of TT’s patents, by refiling challenges to most (if not all) of the patents-in-
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`suit” and asked the district court for “a short period of time to coordinate on these
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`PTAB actions.” (Ex. 2002, p. 3.) On July 20, 2015, Petitioners and CQG reiterated
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`their previous statement and further informed the district court, “For CQG’s part, it
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`is preparing to file CBMR petitions on the ’411, ’374, ’768, and ’724 patents in the
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`next several weeks.” (Ex. 2003, p. 8.)
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`CBM2014-00181
`Patent 7,676,411 B2
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`TT based its discovery request on these two statements, alleging that they
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`amount to an admission that CQG prepared the petition that was filed in this
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`proceeding. (Motion, pp. 1-12.) TT sought, and was denied, additional discovery
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`based on these same statements plus additional facts in CBM2015-00161. In the
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`’161 proceeding, TradeStation Group, Inc. and TradeStation Securities, Inc. (also
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`Petitioners here) filed a CBM review petition challenging TT’s U.S. Patent No.
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`6,766,304. This ’304 petition was substantially similar to an earlier CQG petition
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`challenging the ’304 patent, which was denied on procedural grounds in
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`CBM2015-00057. The Board held that the district court statements and additional
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`facts in the ’161 proceeding did not show good cause for granting additional
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`discovery, and thus denied TT’s request.
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`III. TT’s motion fails to establish good cause under the Garmin/Bloomberg
`factors, and thus additional discovery is not warranted.
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`As in the ’161 proceeding, TT’s motion fails to establish good cause as to
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`why the additional discovery is needed. 37 C.F.R. § 42.224. The Board analyzes
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`the Garmin/Bloomberg factors on a case-to-case basis to determine whether
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`additional discovery is warranted in a CBM proceeding. See Garmin at 6-7, as
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`modified by Bloomberg at 4. TT’s motion does not show beyond a mere possibility
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`or allegation that something useful will be found (first Garmin/Bloomberg factor),
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`is overly broad and improperly seeks Petitioners’ litigation positions (second
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`CBM2014-00181
`Patent 7,676,411 B2
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`Garmin/Bloomberg factor), and the cases that TT relies on to support its motion
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`are inapposite. Thus, the Board should deny TT’s motion.
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`A. TT has not shown more than a mere possibility or allegation that
`something useful will be found (first Garmin/Bloomberg factor).
`TT has not proffered evidence or reasoning tending to show beyond
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`speculation that something useful will be found. Indeed, TT failed to provide a
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`single fact tending to show that CQG should have been listed as an RPI in this
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`proceeding. Instead, TT mischaracterized two statements that Petitioners and CQG
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`made in the co-pending litigation and then jumped to the unsupported conclusion
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`that CQG prepared the petition that was filed in this proceeding. However, neither
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`statement supports TT’s allegations nor meets the threshold showing to warrant
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`additional discovery.
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`1.
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`The first statement TT relies on merely indicates that the
`co-defendants were coordinating some aspects of their
`defense against the numerous patents that TT asserted
`against them.
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`The first statement that TT relied on comes from Petitioners’ and CQG’s
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`July 15, 2015 Response to TT’s emergency motion (Ex. 2002). There, Petitioners
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`and CQG informed the district court that,
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`Defendants plan to request that the PTAB decide the
`validity of TT’s patents, by refiling challenges to most (if
`not all) of the patents-in-suit. . . . Given these very recent
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`CBM2014-00181
`Patent 7,676,411 B2
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`developments, Defendants respectfully request a short
`period of time to coordinate on these PTAB actions.
`(Ex. 2002, p. 3.)
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`This statement does not indicate which defendants were planning to file on
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`which of TT’s patents. Nor does it indicated that CQG prepared the petition that
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`was filed in this proceeding. Setting aside pure speculation, nothing can be gleaned
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`from this statement regarding any particular defendant’s involvement in any of the
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`pending PTAB proceedings.
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`Rather, this statement merely indicates that the co-defendants were
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`coordinating some aspects their defense against the numerous patents that TT
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`asserted against them. Petitioners’ coordination with CQG in this manner does not
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`implicate CQG as an RPI in this proceeding. Office Patent Trial Practice Guide, 77
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`Fed. Reg. 48756, 48760 (a party is not an RPI or privy for purposes of a PGR
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`petition based solely on that party’s participation in a joint defense group); see also
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`Petroleum Geo-Servs. Inc. v. WesternGeco LLC, IPR2014-00687, Paper 33 at 16
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`(PTAB Dec. 15, 2014) (holding petitioner’s and non-party’s shared interest in
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`invalidating patent at issue, “collaborat[ion] together, and invo[cation of the]
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`common interest privilege with respect to sharing potentially invalidating prior art
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`references” were insufficient to render non-party a real-party-in-interest). Thus, the
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`CBM2014-00181
`Patent 7,676,411 B2
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`first statement that TT’s motion relied on does not tend to show, in any way, that
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`CQG prepared, controlled, or funded the petition that was filed in this proceeding.
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`Moreover, it is no secret that co-defendants in the co-pending TT litigation,
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`including Petitioners and CQG, have coordinated on some CBM petitions. On
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`September 2, 2015, Petitioners and CQG filed a petition for CBM review of TT’s
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`U.S. Patent 7,533,056 (CBM2015-00179), a different patent from the one
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`challenged here, identifying as real-parties-in-interest TradeStation, IBG, and
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`CQG2. And on October 23, 2015, IBG and CQG filed a petition for CBM review
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`of TT’s U.S. Patent No. 7,685,055 (CBM2016-00009)—again, a different patent
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`from the one challenged here, identifying as real-parties-in-interest IBG and CQG.
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`The fact that defendants coordinated on different patents does not establish any
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`likelihood that the requested discovery will show that Petitioners and CQG
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`coordinated on this patent.
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`TT baldly states that the coordination on the challenges to the ’055 and ’056
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`patents is enough: “Based on this evidence of Petitioners and CQG’s coordination,
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`CQG is an RPI to this proceeding as well.” (Motion, p. 2.) But this is a non
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`sequitur. Petitioners were diligent in properly naming all RPIs in this proceeding,
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`2 CQG, Inc. and CQGT, LLC (collectively, “CQG”).
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`CBM2014-00181
`Patent 7,676,411 B2
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`and took pains to avoid creating a factual basis for the suggestion that CQG had
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`any control over the content of this petition, or the decision to file it.
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`2.
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`The second statement that TT relies on merely indicates
`that CQG was preparing a petition against the ’411 patent,
`not the petition that was filed in this proceeding.
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`The second statement TT relies on comes from Petitioners’ and CQG’s July
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`20, 2015 Supplemental Response to TT’s emergency motion (Ex. 2003). There,
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`Petitioners and CQG informed the district court, “For CQG’s part, it is
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`preparing to file CBMR petitions on the ’411, ’374, ’768, and ’724 patents.” (Ex.
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`2003, p. 8 (emphasis added).) TT latched onto this statement, grossly
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`mischaracterizing it throughout its entire motion as an admission from Petitioners
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`and CQG that CQG prepared the petition that was filed in this proceeding.
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`(Motion, pp. 1-12.)
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`TT is way off the mark. The second statement merely indicates that CQG
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`was preparing a petition against the ’411 patent and other TT patents; not that
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`CQG prepared, controlled, or funded the petition that TradeStation and IBG filed
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`in this proceeding. Indeed, this statement is solely directed to CQG’s activities—it
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`does not mention Petitioners nor imply that CQG was coordinating with Petitioners
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`on a ’411 petition.
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`CBM2014-00181
`Patent 7,676,411 B2
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`Even when considered in light of the first statement—which again, does not
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`identify the activities of any particular defendant with respect to any of the pending
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`CBMs—TT’s allegations are pure conjecture. The facts that (1) Petitioners and
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`CQG are co-defendants in the underlying litigation and (2) CQG was preparing a
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`petition against the ’411 patent does not lead to the conclusion that CQG prepared
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`the petition that was filed in this case. TT failed to appreciate that each of
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`TradeStation, IBG, and CQG has standing to individually file a CBM petition
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`against the ’411 patent. The second statement merely indicates that, at some point,
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`CQG was preparing a petition to challenge the ’411 patent. TT offered no evidence
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`tending to show that the petition in this proceeding was prepared by CQG. Cf.
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`RPX Corp. v. VirnetX Inc., IPR2014-00171, Paper 18 at 2 (PTAB Jan. 27, 2014)
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`(“RPX”) (granting additional discovery when metadata in the petitions
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`demonstrated that non-party’s counsel was involved in the petitions).
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`Moreover, none of the so-called “admissions” made by defendants in the co-
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`pending litigation give rise to anything other than mere speculation that CQG had
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`any direction or control over the petition for this proceeding. Nowhere, not to the
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`district court or otherwise, did defendants ever state that there was any
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`coordination on the ’411 patent. The fact that defendants were coordinating
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`generally on patent challenges does not logically mean there is more than a “mere
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`CBM2014-00181
`Patent 7,676,411 B2
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`possibility” that Petitioners and CQG coordinated specifically with respect to the
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`challenge to this patent.
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`Thus, contrary to TT’s allegations, Petitioners and CQG did not state or
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`admit “to the district court that CQG prepared, or at least assisted with preparing,
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`the petition” that was filed in this proceeding. (Motion, p. 5 (emphasis added).)
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`Nor did Petitioners and CQG “affirmatively state[] that CQG possessed control
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`over the petition” that was filed in this proceeding. (Id. (emphasis added).) Thus,
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`TT’s motion is factually baseless, misleading, and fails to satisfy the first
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`Garmin/Bloomberg factor. Additionally, TT failed to show that its discovery
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`request would uncover “useful” information, as required under the first
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`Garmin/Bloomberg factor. See Hamilton Beach Brands, Inc. v. Courtesy Products,
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`LLC, IPR2014-01257, Paper 8 at 4 (PTAB Oct. 15, 2014) (explaining that since
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`non-party was not procedurally barred from petitioning for review, additional
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`discovery related to the non-party’s status as an RPI is not “likely to lead to
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`information helpful” to the moving party’s case).
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`B.
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`TT’s request is overly broad because it seeks communications
`related to anticipated filings, which have no bearing on whether
`CQG is an RPI in this proceeding (second Garmin/Bloomberg
`factor).
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`TT’s request is overly broad because it seeks communications between
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`Petitioners and CQG with respect to anticipated PTAB proceedings against the
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`CBM2014-00181
`Patent 7,676,411 B2
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`’411 patent. (Motion, p. 1.) (“All communications (including emails) and
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`agreements between” Petitioners and CQG “related to the filing, preparation, or
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`funding of any post-grant proceeding (filed or anticipated) against TT’s U.S. Patent
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`No. 7,676,411 . . . .”) Communications regarding anticipated proceedings have no
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`bearing on whether CQG contributed any funding, control, or direction to the
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`petition that was filed in this proceeding, which is the only relevant question
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`presently before the Board. Thus, the Board should deny TT’s request as overly
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`broad.
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`C. RPX and Reflectix are inapposite.
`TT argued that RPX and Reflectix, Inc. v. Promethean Insulation Technology
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`LLC, IPR2015-00039 (“Reflectix”) “illustrate why discovery is warranted in this
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`case.” (Motion, pp. 6-8.) They do not. The facts in RPX and Reflectix are not
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`similar to those in this proceeding. Thus, neither case supports TT’s motion.
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`RPX does not suggest that discovery is warranted in this proceeding. In that
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`case, it was undisputed that the petitioner (RPX) “filed inter partes review (‘IPR’)
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`requests against the [patents-at-issue] pursuant to a newly created program in
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`which Apple, as RPX’s client, in October 2013, paid RPX a sum of $500,000,
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`among other things, to file IPR reviews.” RPX, Paper 57 at 3-4, 3 n.4 (PTAB Jun.
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`5, 2014). Of course, if TT had come forward with evidence of a relationship
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`Patent 7,676,411 B2
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`between Petitioners and CQG remotely resembling that between RPX and Apple,
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`Petitioners could hardly argue that TT would not be entitled to some discovery of
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`the details of that relationship. Here, CQG is not Petitioners’ “client,” nor did CQG
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`compensate Petitioners to file this petition. TT has not come forward with any
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`evidence whatsoever that CQG had anything to do with this petition, as discussed
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`at length above. As in the ’161 proceeding, none of the facts that led the Board to
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`grant VirnetX’s motion in RPX are present in this proceeding. See CBM2015-
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`00161, Paper 20 at 12 (denying TT’s request for additional discovery and
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`distinguishing the facts in RPX).
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`Reflectix is also inapposite. In that case, the patent owner (Promethean) had
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`sued the Sealed Air Corporation (“SAC”) and its wholly-owned subsidiary
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`Reflectix. Reflectix, Paper 18 at 3. Reflectix filed an inter partes review petition to
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`challenge the asserted patent, but the power of attorney listed SAC as the
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`petitioner. Id. at 6. Thus, Reflectix involved a parent-subsidiary relationship and
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`there was direct evidence that the parent company had a hand in preparing the
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`petition (i.e., the parent was listed as the petitioner on the power of attorney).
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`Those facts are not present in this proceeding—nor any facts that are remotely
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`similar.
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`Patent 7,676,411 B2
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`Moreover, Promethean did not seek additional discovery. Nor did the Board
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`analyze the Garmin/Bloomberg factors to determine whether additional discovery
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`was warranted. Instead, Promethean included its arguments related to RPI in its
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`preliminary response, after which the Board ordered additional briefing on the
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`issue. Id. at 2-3. In the additional briefing, SAC admitted that it prepared and
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`funded the petition. Id. at 5-6. The Board held that SAC was an RPI, id. at 10-13,
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`and that the petition could not be corrected without losing its filing date, id. at 13-
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`18, and then denied the petition because SAC was procedurally barred from filing
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`a petition against the patent-at-issue, id. at 18.3
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`Thus, the facts in Reflectix are not similar to the instant proceeding:
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`Petitioners and CQG do not have a parent-subsidiary relationship; CQG was not
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`listed as a petitioner on a power of attorney; CQG has not admitted to preparing
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`and funding the instant petition; and CQG is not procedurally barred from filing a
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`petition against the ’411 patent. Further, additional discovery was not even at issue
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`in Reflectix. Thus, TT’s reliance on Reflectix is misplaced.
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`3 The Board noted, however, “correcting the identification of RPI listed in a
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`petition results in a loss of the petition’s filing date, with a new filing date assigned
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`as of the date the RPI identification is corrected” when the newly-listed RPI is not
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`procedurally barred from filing a petition on the new filing date. Id. at 7-8.
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`Patent 7,676,411 B2
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`IV. Conclusion
`For these reasons, the Board should deny TT’s motion in all respects.
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`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`/Richard M. Bemben #68658/
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`Robert E. Sokohl, Registration No. 36,013
`Lori A. Gordon, Registration No. 50,633
`Richard M. Bemben, Registration No. 68,658
`Attorneys for Petitioners
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`Date: November 27, 2015
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`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
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`CBM2014-00181
`Patent 7,676,411 B2
`
`CERTIFICATION OF SERVICE
`The undersigned hereby certifies that the foregoing PETITIONERS’
`
`OPPOSITION TO PATENT OWNER’S MOTION FOR ADDITIONAL
`
`DISCOVERY was served electronically via e-mail on November 27, 2015, in
`
`their entirety on the following:
`
`Erika H. Arner (Lead Counsel)
`Joshua L. Goldberg (Back-up Counsel)
`Kevin D. Rodkey (Back-up Counsel)
`Rachel Emsley (Back-up Counsel)
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`erika.arner@finnegan.com
`joshua.goldberg@finnegan.com
`kevin.rodkey@finngan.com
`rachel.emsley@finnegan.com
`
`
`Steven F. Borsand (Back-up Counsel)
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`steve.borsand@tradingtechnologies.com
`
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Richard M. Bemben #68658/
`
`
`Richard M. Bemben
`Registration No. 68,658
`Attorney for Petitioners
`
`Date: November 27, 2015
`
`1100 New York Avenue, N.W.
`Washington, D.C.20005-3934
`(202) 371-2600