Paper: _____
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`Filed: December 3, 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 REPLY TO
`PETITIONER’S OPPOSITION TO MOTION FOR
` ADDITIONAL DISCOVERY
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`Filed: December 3, 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 REPLY TO
`PETITIONER’S OPPOSITION TO MOTION FOR
` ADDITIONAL DISCOVERY
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`Case CBM2015-00181
`U.S. Patent 7,676,411
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`I.
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`CONTENTS
`
`PETITIONERS DO NOT DENY COOPERATING WITH CQG
`OR THAT CQG AIDED IN PREPARING THE ’411 PETITION .......... 1
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`II. TT’S REQUESTS ARE NOT OVERBROAD ............................................ 3
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`III. PETITIONERS DO NOT DISPUTE THAT THE REMAINING
`GARMIN FACTORS WEIGH IN FAVOR OF DISCOVERY ................. 4
`
`IV. PETITIONERS’ MISAPPREHEND REFLECTIX AND RPX ................. 5
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`1
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`PETITIONERS DO NOT DENY COOPERATING WITH CQG OR
`THAT CQG AIDED IN PREPARING THE ’411 PETITION
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`I.
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`Petitioners do not deny cooperation, aid, or labor division with CQG.
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`Instead, Petitioners claim they “took pains to avoid creating a factual basis for the
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`suggestion that CQG had any control over the content of the petition, or the
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`decision to file it.” Paper 19 (“Opp.”) at 8. Using the same counsel and work
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`product prepared with CQG is not taking “pains” to avoid control by CQG. See
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`Mot. at 2. Counsel cannot forget what they did for CQG and many exhibits and
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`sections are used in full from the earlier CBM2015-00179 proceeding jointly
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`prepared by Petitioners and CQG. E.g., compare Ex. 1008 with CBM2015-00179,
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`Ex. 1005 (reused new translation); compare Ex. 1032, ¶¶ 56-64, with CBM2015-
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`00179, Ex. 1019, ¶¶ 58-66 (reused declaration section); compare Pet. § II.B.3 with
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`CBM2015-00179, Paper 9, § III.C.3 (reused petition argument section).
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`Rather than taking “pains” to work independently, Petitioners told the
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`district court they were, in fact, working jointly (when working jointly favored a
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`stay). Now they deny it and argue that their statements “do not indicate which
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`defendants were planning to file on which of TT’s patents” (Opp. at 6), and that TT
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`“failed to appreciate” that parties can file separate petitions (id. at 9). But the
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`district court briefing contradicts those assertions. The briefing defined
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`“Defendants” to include both Petitioners and CQG. Ex. 2002 at 2; Ex. 2003 at 2. It
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`then reported “Defendants’ current efforts challenge the validity of the . . .
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`1
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`’411 [patent],” among others (Ex. 2003 at 9 (emphasis added)), and that “they
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`[Defendants] ‘plan to . . . refil[e] challenges to most (if not all) of the patents-in-
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`suit’” (id. at 8). For those challenges, Petitioners’ stated that CQG “is preparing to
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`file CBMR petitions on the ’411 [patent].” Id. In context, these statements show
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`that the CBM petitions, particularly the ’411 petition, were coordinated actions by
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`the Defendants—not solitary actions. That the Defendants could separately prepare
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`petitions fails to erase the admissions of joint preparation.
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`Petitioners also argue that the evidence shows only that CQG prepared “a”
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`’411 petition, not “the” ’411 petition. See Opp. at 5-10. But Petitioners fail to
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`explain why Defendants’ promise to file a ’411 petition “in the next several weeks”
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`(id. at 8) does not implicate “the” ’411 petition—the only ’411 petition filed in that
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`window. Thus, objective review of the facts warrants additional discovery on
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`CQG’s involvement in “the” ’411 petition. Moreover, possible differences between
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`CQG’s “a” petition and “the” petition ultimately filed fail to render Petitioners’
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`coordination with CQG on the ’411 patent irrelevant. Ex. 2003 at 8-9. That
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`coordination directly relates to RPI status, even if CQG later relinquished control.
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`To be clear, TT is not arguing that participation in a litigation joint defense group
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`creates an RPI. This is not the issue here. The cases Petitioners cite relate to joint
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`defense groups for district court—not groups coordinating on CBM petitions. Opp.
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`at 6-7. Coordinated preparation of a petition is exactly the cooperation that
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`2
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`warrants additional discovery, as shown by RPX and Reflectix. And TT’s request—
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`limited to communications and agreements between CQG and Petitioners related to
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`a ’411 post-grant proceeding—seeks only pertinent evidence on that coordination.
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`This narrower request, despite Petitioners’ assertions (Opp. at 4), remedies
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`the reasons the Board denied TT’s request in CBM2015-00161, because it is to the
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`’411 patent and specific types of documents (see Mot. at 11-12 (expressly
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`addressing that denial)). And the Board already recognized it is not the same
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`request. Ex. 2001 at 6:19-7:1. Accordingly, Petitioners unsupported
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`characterization of the requests as being the same without explanation lacks merit.
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`The pending motion is not on CQG’s RPI status. Instead, the question before
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`the Board is whether Petitioners (1) admitted coordination with CQG and
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`(2) statements on CQG’s preparation of a petition for “Defendants” to challenge
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`the ’411 patent show more than a possibility or mere allegation that evidence on
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`Petitioners’ coordination with CQG exists. They do. Indeed, Petitioners do not
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`deny that correspondence between Petitioners and CQG on filing a ’411 petition
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`exist to certify their statements in Exs. 2002 and 2003 or that they coordinated and
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`shared labor on filing a ’411 petition. See generally Opp.; see also Mot. at 5-6.
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`II. TT’S REQUESTS ARE NOT OVERBROAD
`Petitioners argue TT’s request improperly seeks information on
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`“anticipated” filings against the ’411 patent. Opp. at 10-11. While Petitioners
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`3
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`contend CQG’s efforts were unrelated to this proceeding, the sharing of its work
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`with Petitioners and other coordination (e.g., agreements on who would file when)
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`with respect to the ’411 patent is highly relevant to CQG’s RPI status. And
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`communications on “anticipated” proceedings appropriately encompass
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`communications before the filing of this proceeding. Moreover, TT specifically
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`limited its request to communications and agreements between CQG and the
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`Petitioners to eliminate any concern that the request would include any truly
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`independent work by CQG. If the Board thinks the request needs further narrowing
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`but discovery is warranted, the Board can instruct the parties to meet and confer on
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`scope or explicitly carve privileged work product out of any ordered discovery.
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`III. PETITIONERS DO NOT DISPUTE THAT THE REMAINING
`GARMIN FACTORS WEIGH IN FAVOR OF DISCOVERY
`Petitioners do not challenge the Board’s previous findings that the third and
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`fourth Garmin factors weigh in favor of granting additional discovery. See
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`generally Opp.; see also Tradestation v. Trading Techs., CBM2015-00161, Paper
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`20, at 9-10 (PTAB 2015). Regarding factor two, except for a cursory statement,
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`Petitioners did not explain why TT’s request seeks litigation positions. Opp. at 4.
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`TT narrowly tailored its request to “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 post-grant petitions against the ’411 patent to avoided seeking
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`privileged material or positions prepared for the litigation. Mot. at 1.
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`4
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`IV. PETITIONERS’ MISAPPREHEND REFLECTIX AND RPX
`Petitioners read RPX and Reflectix too narrowly. See Opp. at 11-13. TT’s
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`Motion relies on joint statements by Petitioners and CQG that CQG was preparing
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`a petition on the ’411 patent for “Defendants” as part of a coordinated strategy.
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`RPX provided discovery when one party prepared a petition for others, as occurred
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`here. RPX, IPR2014-00171, Paper 57 (PTAB 2014). RPX did not, as Petitioners
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`suggest, add a requirement of metadata and statements about funding to warrant
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`discovery. Opp. at 11-12. “Defendants” promised to file a petition prepared by
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`CQG on the ’411 patent “in the next several weeks” (Ex. 2003 at 8, 9), and only
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`one petition was filed against the ’411 patent in that window. Petitioners cannot
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`avoid discovery because the form of its admission differs from the form in RPX.
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`Reflectix recognizes that relinquishing control does not absolve a party who
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`drafted a petition in a coordinated effort, such as CQG, from RPI status. Reflectix,
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`IPR2015-00039, Paper 18, at 10-11 (PTAB 2015). Reflectix found an unnamed
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`party to be an RPI when that party acknowledged preparing the petition, similar to
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`the facts here, where Petitioners admitted CQG was preparing the petition for
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`“Defendants.” Accordingly, Reflectix also supports granting additional discovery.
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`Dated: December 3, 2015
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`Respectfully submitted,
`
`By: /Kevin D. Rodkey
` Kevin D. Rodkey, Reg. No. 65,506
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`5
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`CERTIFICATE OF SERVICE
`
`Case CBM2015-00181
`U.S. Patent 7,676,411
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`The undersigned hereby certifies that a copy of the foregoing Patent
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`Owner’s Reply to Petitioner’s Opposition to Motion for Additional Discovery
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`was served on December 3, 2015, via email directed to counsel of record for the
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`Petitioners at the following:
`
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`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
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`Lori Gordon
`lgordon-ptab@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
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`PTAB@skgf.com
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`
`
`/Lisa C. Hines/
`Lisa C. Hines
`Litigation Clerk
`
`Finnegan, Henderson, Farabow, Garrett &
`Dunner, LLP
`
`
`
`6
`
`Dated: December 3, 2015
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