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`Paper No.
`Filed: June 23, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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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.
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`Petitioners
`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.
` Patent Owner
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`
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`Case CBM2015-00182
`U.S. Patent 6,772,132
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`PATENT OWNER’S MOTION TO MAINTAIN
`CONFIDENTIAL INFORMATION UNDER SEAL PENDING
`DISPOSITION OF APPEAL
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`I.
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`Statement of Relief Requested
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`Pursuant to this Board’s authorization on June 13, 2017, Patent Owner
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`CBM2015-00182
`U.S. Patent 6,772,132
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`respectfully requests that all sealed documents in CBM2015-00182 be preserved in
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`non-public form pending disposition of any appeals. Moreover, within 10 days of the
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`disposition of all appeals in this matter, Patent Owner respectfully requests that all
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`confidential information filed by Patent Owner be expunged from the record pursuant
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`to Rule 42.56 and not be made public.
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`Patent Owner has conferred with Petitioner on both requests and Petitioner does
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`not oppose.
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`II. Reasons Why Requested Relief Should Be Granted
`A. The Record Should be Preserved Pending Appeal So the Federal Circuit
`Has Full Access to the Record
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`The Federal Rules of Appellate Procedure and the Federal Circuit Rules require
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`that the record be retained by the Board pending appeal. Specifically, Federal Circuit
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`Rule 17(a) states that “the agency must retain the record.” Federal Circuit Rule 17(d),
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`titled “Access of Parties and Counsel to Original Record” also requires that the parties
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`and their counsel have access to both the sealed and unsealed portions of the record
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`“when a petition for review or notice of appeal is filed.” Petitioners’ and Patent
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`Owner’s Notices of Appeal were filed May 15, 2017.
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`If the record is not preserved in its entirety, including any sealed portions, and an
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`appeal is taken, the Federal Circuit will not be able to fully consider the issues, which
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`1
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`CBM2015-00182
`U.S. Patent 6,772,132
`would cause prejudice to Patent Owner and violate the appellate rules. Moreover, as
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`the Board did not rely on any of this confidential information in its final written
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`decision or decisions denying rehearing, such information may properly be maintained
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`under seal here.
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`B. Subsequent to the Disposition of Appeal, Confidential Information
`Should be Expunged
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`Additionally, Patent Owner respectfully requests that subsequent to the
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`dispositions of all appeals, all sealed confidential information filed on the CBM docket
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`be expunged for the reasons set forth below.
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`1. The Board Found Good Cause to Seal Patent Owner’s
`Confidential Information
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`In connection with its Patent Owner’s Response, TT filed four Motions to Seal.
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`(Papers 52, 60, 87, and 89). These motions covered certain pleadings, declarations and
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`exhibits containing or referring to Patent Owner’s confidential business information.
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`(Papers 53, 61, 66, 85, and 90; Exhibits 2169, 2172, 2224, 2225, 2232, 2247, 2270,
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`2286, 2294, and 2295).
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`The Board granted two Motions to Seal, and dismissed the other two Motions to
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`Seal after denying and expunging the underlying confidential Motions to Submit
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`Supplemental Information and Briefing. (Papers 93 and 130). The information
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`covered by the two granted Motions to Seal should be maintained under seal because
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`this Board has already found that there was good cause to grant the motions to seal in
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`2
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`CBM2015-00182
`U.S. Patent 6,772,132
`the first instance. (Paper 130, at 4). Specifically, TT identified that the sealed papers
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`contain sensitive business information that would not otherwise be published or made
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`available to the public. As this information was not relied on in the Final Written
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`Decision here, protecting the confidential material throughout the appeals does not
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`impact the public interest in obtaining access to these proceedings. Further, any impact
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`to the public interest has been minimized as non-confidential versions of the papers
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`have already been filed. Id.
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`2. The Sealed Documents Contain Confidential and Sensitive
`Business Information That was not Relied on by the Board in the
`Final Written Decision
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`For the same reasons set forth in Patent Owner’s Motions to Seal, namely that
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`the sealed information “contain[s] information identified as [] sensitive, non-public
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`information that a business would not make public,” all the information filed under seal
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`in this matter should be expunged from the record within 10 days of the disposition of
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`all appeals. Expunging the sealed information will avoid the prejudice to parties that
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`would be caused by public disclosure of their sealed information. The information
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`Patent Owner seeks to have expunged after the disposition of appeals is as follows:
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`Papers 53, 61, and 66, and Exhibits 2169, 2172, 2224, 2225, 2232, 2247, 2270, 2286,
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`2294, and 2295.
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`Because Patent Owner has already filed redacted versions of the sealed
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`documents, expunging confidential materials after appeal addresses the “public interest
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`3
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`CBM2015-00182
`U.S. Patent 6,772,132
`in maintaining a complete and understandable file history for public notice purposes”
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`while protecting the confidential and proprietary information of other parties. (See 77
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`FED. REG. 48623). A short summary of these materials follows.
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`First, Confidential Patent Owner’s Motion for Additional Discovery (Paper 53)
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`was not cited in the Board’s Final Written Decision and contains (1) confidential
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`information consisting of internal TradeStation documents relating to its products and
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`customers, (2) the deposition transcripts of Mr. Bartleman (TradeStation’s President)
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`and Mr. Galik (IB’s head of software development) and (3) quotations from those
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`documents and transcripts. This information has not been published or otherwise made
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`public. The redacted information is not specifically referenced in the Board’s final
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`decision.
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`Second, the redacted versions of Confidential Patent Owner’s Response (Paper
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`61) and Confidential Corrected Patent Owner’s Response (Paper 66) were cited in the
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`Board’s Final Written Decision and contain declarations and exhibits that contain
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`highly sensitive, non-public information that a business would not make public.
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`Specifically, the redacted portions of Patent Owner’s Response (Paper 62) and
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`Corrected Patent Owner’s Response (Paper 67) contain business sensitive statements in
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`the context of licensing Patent Owner’s products. The redacted information is not
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`specifically referenced in the Board’s final decision.
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`Third, the confidential information contained in Exhibits 2169, 2172, 2224,
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`4
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`CBM2015-00182
`U.S. Patent 6,772,132
`2225, 2232, 2247, 2270, 2286, 2294, and 2295 was not relied upon in the Board’s Final
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`Written Decision. (Paper 130, at 3). These exhibits contain highly sensitive and
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`proprietary Patent Owner information, including internal financial information, third-
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`party business strategy information, and third-party admissions and statements.
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`III. Conclusion
`Patent Owner respectfully requests that the entire CBM record be preserved in
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`its present form pending appeal, including preservation of documents filed under seal
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`in non-public form.
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`Within 10 days after disposition of any appeals, Patent Owner requests that the
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`sealed materials be expunged from the CBM docket.
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`Dated: June 23, 2017
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`By: /Cole B. Richter/
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`Respectfully submitted,
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`Counsel for Patent Owner
`Trading Technologies International, Inc.
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`5
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing PATENT
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`OWNER’S MOTION TO MAINTAIN CONFIDENTIAL INFORMATION
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`UNDER SEAL PENDING DISPOSITION OF APPEAL was served on June 23,
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`2017 via email directed to counsel of record for the Petitioner at the following:
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`Robert E. Sokohl
`rsokohl@skgf.com
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`Lori Gordon
`lgordon-PTAB@skgf.com
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`Richard Bemben
`rbemben-PTAB@skgf.com
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`John C. Phillips
`phillips@fr.com
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`John C. Phillips
`CBM41919-0006CP1@fr.com
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`PTAB@skgf.com
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`Date: June 23, 2017
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`
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`/Cole B. Richter/
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