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`Page 1
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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., AND IBFX,
` INC.,
`
` Petitioners,
`
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` Patent Owner.
` _________________________________
`
` CBM2015-00161 (Patent No. 6,766,304 B2)
` CBM2015-00172 (Patent No. 7,783,556)
` CBM2015-00179 (Patent No. 7,533,056 B2)
` CBM2015-00181 (Patent No. 7,676,411 B2)
` CBM2015-00182 (Patent No. 6,772,132 B1)
`
` August 10, 2016
` TELEPHONE CONFERENCE IN THE ABOVE MATTER
` Before: MEREDITH C. PETRAVICK
` JEREMY M. PLENZLER
` SALLY C. MEDLEY
` Administrative Patent Judges
`
` VERITEXT NATIONAL COURT REPORTING COMPANY
` MID-ATLANTIC REGION
` 1250 Eye Street, N.W., Suite 250
` Washington, D.C. 20005
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
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`Page 1 of 26
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`TRADING TECH EXHIBIT 2393
`IBG ET AL. v. TRADING TECH
`CBM2015-00182
`
`

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`Page 2
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` A P P E A R A N C E S :
`
` R E P R E S E N T I N G T H E P E T I T I O N E R S :
`
` S T E R N E , K E S S L E R , G O L D S T E I N & F O X , P L L C
` B Y : R O B E R T E . S O K O H L , E S Q U I R E
` L O R I A . G O R D O N , E S Q U I R E
` R I C H A R D M . B E M B E N , E S Q U I R E
` 1 1 0 0 N e w Y o r k A v e n u e , N . W .
` W a s h i n g t o n , D . C . 2 0 0 0 5 - 3 9 3 4
` 2 0 2 - 3 7 1 - 2 6 0 0
` r s o k o h l - p t a b @ s k g f . c o m
` l g o r d o n - p t a b @ s k g f . c o m
` r b e m b e n - p t a b @ s k g f . c o m
` a n d
` F I S H & R I C H A R D S O N
` B Y : A D A M J . K E S S E L , E S Q U I R E
` O n e M a r i n a P a r k D r i v e
` B o s t o n , M A 0 2 2 1 0 - 1 8 7 8
` 6 1 7 - 3 6 8 - 2 1 8 0
` k e s s e l @ f r . c o m
`
` R E P R E S E N T I N G T H E P A T E N T O W N E R :
`
` F I N N E G A N , H E N D E R S O N , F A R A B O W , G A R R E T T &
` D U N N E R , L L P
` B Y : R A C H E L L . E M S L E Y , E S Q U I R E
` T w o S e a p o r t L a n e
` B o s t o n , M A 0 2 2 1 0 - 2 0 0 1
` 6 1 7 - 6 4 6 - 1 6 0 0
` r a c h e l . e m s l e y @ f i n n e g a n . c o m
`
`A l s o P r e s e n t :
`
` J e n K u r c z
` J o s h G o l d b e r g
`
`Veritext Legal Solutions
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`Page 2 of 26
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`

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`Page 3
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` P R O C E E D I N G S
`
` * * * * * * * * * *
`
` JUDGE PETRAVICK: This is the conference
`
` call for CBM2015-00161, '00172, '00179, '00181, and
`
` '00182.
`
` Could I know who's on the line from the
`
` Petitioners?
`
` MR. SOKOHL: Yes, Your Honor. This is
`
` Robert Sokohl, with Sterne Kessler. With me is
`
` Richard Bemben and Lori Gordon. And also with me
`
` is Adam Kessler from Fish & Richardson.
`
` MR. PHILLIPS: John Phillips with Fish &
`
` Richardson.
`
` MR. SOKOHL: Thank you, John.
`
` JUDGE PETRAVICK: Thank you.
`
` And for Patent Owner?
`
` MS. EMSLEY: Hi, Your Honor. This is
`
` Rachel Emsley for Patent Owner. With me is Jen
`
` Kurcz, and also on the line is Josh Goldberg.
`
` JUDGE PETRAVICK: All right.
`
` Mr. Sokohl, are you going to speak on
`
` behalf of all the Petitioners?
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` MR. SOKOHL: I am, Your Honor.
`
` JUDGE PETRAVICK: All right. Patent
`
` Owner, you requested the call, so we'll hear from
`
` you first.
`
` MS. EMSLEY: Thank you, Your Honor.
`
` In the Board's order on July 19th, the
`
` Board suggested that supplemental information and
`
` supplemental briefing would be the appropriate
`
` avenue for TT to seek supplemental information
`
` that we originally sought in our motion for
`
` additional discovery filed in June.
`
` And we understand that there are two
`
` prongs for showing that supplemental information
`
` under 37 CFR 42.233 is appropriate, that the
`
` information reasonably could not have been
`
` obtained earlier and that the consideration of
`
` the supplemental information would be in the
`
` interest of justice. And I would like to address
`
` both prongs.
`
` JUDGE PETRAVICK: Could I interrupt you
`
` for one minute?
`
` MS. EMSLEY: Yes.
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` JUDGE PETRAVICK: I forgot to ask, is
`
` there a court reporter on the line?
`
` REPORTER: Yes, there is.
`
` JUDGE PETRAVICK: Okay. Thank you.
`
` Go ahead and continue, Ms. Emsley.
`
` MS. EMSLEY: Okay. Sure.
`
` So with respect to the first prong, TT
`
` couldn't have submitted this evidence previously.
`
` As you know, there's always been a protective
`
` order issued that stood in the way of us using
`
` the documents and transcripts that we're seeking
`
` in TT's Patent Owner Responses.
`
` TT asked several times of the
`
` Petitioners for permission to use the documents
`
` produced in litigation in the PTAB. And
`
` Petitioners have always objected to the use of
`
` the documents.
`
` Any agreement from Petitioners has
`
` always been contingent on the Board expressly
`
` authorizing the use in the PTAB. So we pursued
`
` relief, both in the District Court and in the
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` PTAB simultaneously.
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` On June 13th, we filed an emergency
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` motion with the District Court. And had a
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` hearing scheduled for June 15th. And as you
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` recall, on June 13th, we had our telephone
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` conference with the Board, where TT requested the
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` additional discovery. And we were given two days
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` to submit a motion for additional discovery. The
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` call was on a Monday and it was due that
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` Wednesday.
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` On June 13th, in the evening,
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` Petitioners' counsel called TT's in-house counsel
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` and asked for a way to eliminate the need for the
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` District Court hearing scheduled for Wednesday
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` morning, the same day that our additional
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` discovery motion was due.
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` And an agreement was struck that TT
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` could use a subset of the documents in its
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` additional discovery motion that was underway in
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` the PTAB and in exchange for withdrawing the
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` emergency motion --
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` JUDGE PETRAVICK: Ms. Emsley, could we --
`
` we've heard this before. Could we skip to the
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` part -- could you just tell us, at this point in
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` time, did you get relief from the District Court --
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` MS. EMSLEY: Well --
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` JUDGE PETRAVICK: -- to use the
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` documents, is that why you couldn't submit the
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` supplemental information now or is it that the --
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` that the Petitioners are now allowing you?
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` MS. EMSLEY: It's actually both. So
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` when -- following the denial of the motion for
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` additional discovery, TT returned to the Court on
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` July 7th, and I believe we talked about that
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` hearing before, where the District Court said that
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` she would lift the protective order for the PTAB to
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` have all material, all relevant information, to
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` make its determination, so that we could submit it
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` in an offer of proof.
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` And subsequent to that, when we
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` received the denial of the offer of proof, we
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` approached Petitioners regarding the protective
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` order issues, and they have now agreed that if
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` the -- if this Board allows submission of the
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` supplemental information, that they are not going
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` to oppose it on the basis of the protective
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` order.
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` JUDGE PETRAVICK: So the protective order
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` will no longer be an issue?
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` MS. EMSLEY: It is no longer an issue
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` if --
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` JUDGE PETRAVICK: Thank you.
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` MS. EMSLEY: -- you allow the submission
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` of the supplemental information.
`
` JUDGE PETRAVICK: Okay.
`
` MS. EMSLEY: And so that is the first
`
` prong. The second, why this information is in the
`
` interest of justice, these documents and testimony
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` specifically show Petitioners' own view of what was
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` unique about the claimed inventions.
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` They show Petitioners' own views of the
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` claimed inventions were technological solutions,
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` innovative and inventive. And they show
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` Petitioners' records of what occurred when they
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` were adopting claimed features into their
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` products and the importance of those features to
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` the success of their portfolio.
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` And this type of evidence is highly
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` relevant and unique because its submission and
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` the Petitioners' own information contradicting
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` their own expert's testimony. And in the
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` District Court -- the District Court, who had
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` access to the information, confirmed TT's view,
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` that it's in the interest of justice to have
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` these documents and transcripts brought in here.
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` When we were before the Judge asking to
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` use these in an offer of proof, the Court said --
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` and this is according from the July 7th
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` transcript, that she was opening the protective
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` order for purposes of --
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` JUDGE PETRAVICK: You don't need to --
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` you don't need to argue the motion right now.
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` We're just seeing if you have enough for
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` authorization for the motion. I think we're -- at
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` this point, I would like to hear from the
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` Petitioners why Petitioners think we shouldn't
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` authorize the motion.
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` MS. EMSLEY: Okay.
`
` MR. SOKOHL: Thank you, Your Honor.
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` First of all, as pointed out by Ms.
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` Emsley, there are two prongs. And in regard to
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` prong one, the supplemental information
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` reasonably could not have been further, TT just
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` can't make that showing. TT filed their Patent
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` Owner Reply, POR, on June 27th. If we were to
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` adjust the schedule, as you know, June 17th, to
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` allow TT to obtain additional discovery in the
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` District Court. We further extended, by
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` agreement between the parties, until June 27th.
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` Now, TT has been in possession of all
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` of the documents and the transcripts that they
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` wanted to file as supplemental information well
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` before June 27th. We are now six weeks after the
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` filing of the POR.
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` Further, the documents that they want
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` to submit were provided to TT between November of
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` 2015, last year, and May of this year. The
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` deposition that they wanted to submit happened on
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` June 8th. They could have filed that as part of
`
` their POR on June 27th if they believed they were
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` relevant.
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`Page 11
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` In regard to the protective order, TT
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` negotiated a protective order with the
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` Petitioners, filed it in District Court. And
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` they've known about that protective order since
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` the day it was filed many, many, many months ago.
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` JUDGE PETRAVICK: Okay. Just let me ask
`
` you one question. I'm just going to get you --
`
` let's just get straight to the point here.
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` MR. SOKOHL: Yes.
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` JUDGE PETRAVICK: When this document --
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` when this evidence was produced in -- was it
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` June 10th, right, is the date for the discovery
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` deadline in the District Court?
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` MR. SOKOHL: The --
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` JUDGE PETRAVICK: At that --
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` MR. SOKOHL: Go ahead.
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` JUDGE PETRAVICK: Is that --
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` MS. EMSLEY: It was before the time the
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` response was filed.
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` JUDGE PETRAVICK: Well, why couldn't
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` they -- why couldn't you waive the protective order
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` at that point and let them use that information in
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`Page 12
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` this proceeding at that point?
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` I mean, you're doing it now. Before,
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` you told us that it was confidentiality reasons,
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` so what's the change in the confidentiality
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` reasons between June and now?
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` MR. SOKOHL: The issue was, is that the
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` protective order was negotiated very specifically
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` between the parties to not allow any documents that
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` came out through discovery in the District Court to
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` be used in the PTAB.
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` It would be inappropriate -- it was --
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` we felt it was inappropriate to use discovery
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` mechanisms in the District Court to pled this
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` proceeding with hundreds of documents that we
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` don't believe are relevant.
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` Had they had to come here, to the PTAB,
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` they would not have been able to get, in our
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` opinion, this discovery through additional
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` discovery, and, therefore, we held firm as to the
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` protective order.
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` What they're asking for now -- they
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` could have gone to the District Court at any time
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`Page 13
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` prior to June 27th and asked the District Court
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` to intercede and change the protective order.
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` They chose not to. And that's the issue.
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` JUDGE PETRAVICK: Okay. But as for -- as
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` for Petitioners' confidentiality reasons, or the
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` alleged confidentiality reasons that were
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` preventing you from agreeing to waive any of the
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` issues, is that no longer in existence? Something
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` has changed from then and now?
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` MR. SOKOHL: Yeah. We just decided that
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` in regard to the confidentiality nature of the
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` documents, we are not going to let the protective
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` order in the District Court stand in the way of
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` these documents coming in. That doesn't mean that
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` we obviously are in agreement that these documents
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` should come in as supplemental information.
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` JUDGE PETRAVICK: No, I'm not saying that
`
` you're saying that, I'm just -- I just want to
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` know, what has changed between then and now. All
`
` right. Thank you.
`
` All right. I have one more question
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` for Ms. Emsley.
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`Page 14
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` MS. EMSLEY: Yes, Your Honor.
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` JUDGE PETRAVICK: How many documents are
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` you interested in filing?
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` MS. EMSLEY: Right now, I don't know the
`
` exact number. I believe there were 94 ultimately
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` on that list and three transcripts. And so that
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` would be the ultimate maximum. But if we're -- and
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` so if I were to submit them, I would submit the
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` ones on that list. But if -- you know, if we go
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` through the process of really incorporating both
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` arguments, it's possible that we would file a
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` smaller subset of those documents.
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` JUDGE PETRAVICK: And how much --
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` MS. EMSLEY: But I can't say exactly what
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` number.
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` JUDGE PETRAVICK: And if we were to allow
`
` supplemental briefing, how much briefing, an
`
` estimation of pages?
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` MS. EMSLEY: For supplemental briefing, I
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` think that's -- normally, I guess, for the motion
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` part, it would be 15 pages. I think we could do 10
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` pages and a supplemental brief. And we certainly
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`Page 15
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` wouldn't be opposed -- well, Petitioners' paper is
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` still outstanding where they could respond to the
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` argument, but we understand that that would give us
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` some extra pages, and so we're not opposed to them
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` responding separately to that or however the Board
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` deems appropriate.
`
` JUDGE PETRAVICK: Okay. Another
`
` question. In your e-mail, you reference 37 CFR
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` 42.223(c). Why --
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` MS. EMSLEY: Well, to be honest, it seems
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` unclear to me -- you had mentioned supplemental
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` information, and I think it should be (b), but
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` that -- it seems to refer -- the way that (b) is
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` written, it seems to refer to something that
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` Petitioner would do and not Patent Owner. And
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` procedurally, I think we're in a little bit of a
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` different position, because it talks about late
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` submission, referring back, I think, to subportion
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` (a).
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` JUDGE PETRAVICK: Okay.
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` MS. EMSLEY: And so it's a little bit
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` confusing. But I think you're right, it should be
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` (b). I'm sure you're right.
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` JUDGE PETRAVICK: All right. I'd like to
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` pause for a minute while I query my panel about --
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` MS. EMSLEY: Your Honor, could I ask two
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` more questions on --
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` JUDGE PETRAVICK: Yeah. I'm going to
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` give you another chance. I'm going to give both
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` parties another chance to speak.
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` MS. EMSLEY: Thank you.
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` JUDGE PETRAVICK: Just a -- I've got too
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` many people trying to talk to me all at once here.
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` Ms. Emsley, you had something to say?
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` MS. EMSLEY: Yes, Your Honor. Thank you.
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` I wanted to address first the
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` negotiations regarding the protective order. The
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` protective order in the District Court was
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` negotiated in 2010 when the cases began. And
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` this was before the --
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` JUDGE PETRAVICK: Okay. You can put --
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` okay. Let me just -- let me just put this, because
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` right now we're just going to decide whether we are
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` going to authorize you to file the motion. You can
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` put those details in the motion.
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` At this point, if you want to pause one
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` minute more and let Petitioner, you know --
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` Petitioner, do you have anything to say about
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` authorizing the motion as opposed to, you know,
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` the substance of the motion or the merits of the
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` argument?
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` MR. SOKOHL: Yes. Just two points, Your
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` Honor. First is that, as Petitioners -- or
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` actually, Patent Owner noted, on July 15th we had a
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` hearing on the offer of proof. They have now
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` waited three weeks to come to you regarding the
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` supplemental information. That's point number one,
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` so that's untimely.
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` JUDGE PETRAVICK: Okay.
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` MR. SOKOHL: Number two, we have our
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` reply due on September 9th. We have a month --
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` less than a month to go, and they want to put
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` another hundred documents and an additional
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` briefing, including a motion, on top of the
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` already-scheduled work that we have, given all the
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` documents that have already been filed, and so we
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` do not believe the timing of this request is
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` appropriate.
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` JUDGE PETRAVICK: Okay.
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` All right. We acknowledge those
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` considerations, but we are going to authorize the
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` motion for supplemental information. We are --
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` we're going to authorize it. We're going to send
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` you an order with the details of the timing.
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` It's just a motion for offer for -- asking for
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` supplemental information and supplemental
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` briefing. You shouldn't file any exhibits with
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` the motion.
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` Are there any questions?
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` MS. EMSLEY: Yes, Your Honor. So we are
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` not to file the exhibits with the --
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` JUDGE PETRAVICK: Even if --
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` MS. EMSLEY: So to argue in the interest
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` of justice, we will need to address the substance
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` of those documents. That's my understanding.
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` JUDGE PETRAVICK: Okay. We're
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` going to -- we'll take that under advisement and
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` we'll put that, whether you can file all the
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` documents as exhibits in the case or not, in the
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` order.
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` MS. EMSLEY: Thank you.
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` JUDGE PETRAVICK: Actually, I have one
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` more question. Is the agreement that the documents
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` have to be filed under seal?
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` MR. SOKOHL: Yes, Your Honor. They are
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` confidential.
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` JUDGE PETRAVICK: And they would be
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` Petitioners' confidential information?
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` MR. SOKOHL: That is correct.
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` JUDGE PETRAVICK: Or is the Party
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` interested in keeping them confidential?
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` MR. SOKOHL: That is correct, Your Honor.
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` They do fall under the protective order of the
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` Court. And they are marked confidential. And yes,
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` that is exactly correct.
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` JUDGE PETRAVICK: All right. Thank you.
`
` This call is adjourned now.
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` MR. SOKOHL: Thank you.
`
` MS. EMSLEY: Thank you, Your Honor.
`
` (Whereupon the conference call adjourned
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` a t 2 : 5 4 p . m . )
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`CERTIFICATE OF NOTARY PUBLIC
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`Page 21
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`I, FELICIA A. NEWLAND, CSR,
`
`the officer before
`
`whom the foregoing telephonic hearing was taken, was
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`taken by me in stenotype and thereafter reduced to
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`typewriting under my direction;
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`that said telephonic
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`hearing is a true and accurate record of the
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`proceedings; and I am neither counsel for, related
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`to, nor employed by any of the parties to the action
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`in which this hearing was taken; and, further,
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`that
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`I am not a relative or employee of any counsel or
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`attorney employed by the parties hereto, nor
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`financially or otherwise interested in the outcome
`
`of this action.
`
`mm
`
`FELICIA A. NEWLAND, CSR
`
`Notary Public for the
`
`District of Columbia
`
`My commission expires:
`
`August 14, 2019
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`&
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`17th 10:7
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`2
`20005 1:22
`20005-3934 2:6
`2010 16:17
`2015 10:18
`2016 1:15
`2019 21:19
`202-371-2600 2:6
`250 1:21
`27th 10:6,10,14,21
`13:1
`2:54 20:1
`3
`37 4:14 15:8
`4
`42.223 15:9
`42.233 4:14
`6
`6,766,304 1:11
`6,772,132 1:13
`617-368-2180 2:12
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`617-646-1600 2:17
`7
`7,533,056 1:12
`7,676,411 1:13
`7,783,556 1:12
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`8
`8th 10:20
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`94 14:5
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`able 12:17
`access 9:6
`accurate 21:6
`acknowledge 18:4
`action 21:8,13
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`additional 4:11 6:6
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`administrative 1:18
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`agreeing 13:7
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`argue 9:15 18:17
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`board's 4:6
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`14:13,16 15:7,20
`16:2,6,10,19 17:15
`18:3,16,20 19:4,9
`19:12,18
`phillips 3:12,12
`pled 12:13
`plenzler 1:17
`pllc 2:3
`point 7:1 9:18 11:8
`11:22 12:1 17:2,13
`pointed 10:1
`points 17:8
`por 10:6,15,21
`portfolio 8:22
`position 15:17
`possession 10:11
`possible 14:11
`present 2:18
`preventing 13:7
`previously 5:8
`prior 13:1
`procedurally 15:16
`proceeding 12:1,14
`proceedings 21:7
`process 14:10
`produced 5:15
`11:11
`products 8:21
`prong 5:7 8:12 10:3
`prongs 4:13,19 10:2
`proof 7:16,18 9:10
`17:11
`
`Veritext Legal Solutions
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`Page 24 of 26
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`[protective - typewriting]
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`protective 5:9 7:13
`7:19 8:1,3 9:12 11:1
`11:2,4,21 12:7,20
`13:2,12 16:15,16
`19:15
`provided 10:17
`ptab 2:7,7,8 5:15,20
`5:22 6:19 7:13
`12:10,16
`public 21:1,17
`purposes 9:13
`pursued 5:20
`put 16:19,20 17:1,18
`18:22
`
`q
`query 16:3
`question 11:7 13:21
`15:8 19:5
`questions 16:5
`18:13
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`r
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`r 2:1 3:1
`rachel 2:15 3:18
`rachel.emsley 2:17
`rbemben 2:8
`really 14:10
`reasonably 4:15
`10:4
`reasons 12:3,5 13:5
`13:6
`recall 6:4
`received 7:18
`record 21:6
`records 8:19
`reduced 21:4
`refer 15:13,14
`reference 15:8
`referring 15:18
`regard 10:2 11:1
`13:11
`regarding 7:19
`16:15 17:12
`region 1:21
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`related 21:7
`relative 21:10
`relevant 7:14 9:2
`10:22 12:15
`relief 5:21 7:2
`reply 10:6 17:17
`reporter 5:2,3
`reporting 1:20
`representing 2:2,13
`request 18:1
`requested 4:3 6:5
`respect 5:7
`respond 15:2
`responding 15:5
`response 11:19
`responses 5:12
`returned 7:10
`richard 2:5 3:10
`richardson 2:10
`3:11,13
`right 3:20 4:2 9:15
`11:12 13:20,21 14:4
`15:22 16:1,2,21
`18:4 19:18
`robert 2:4 3:9
`rsokohl 2:7
`s
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`s 2:1 3:1
`sally 1:18
`saying 13:17,18
`schedule 10:7
`scheduled 6:3,13
`17:21
`seal 19:6
`seaport 2:16
`second 8:12
`securities 1:5
`seeing 9:16
`seek 4:9
`seeking 5:11
`send 18:7
`separa