Paper No.
`
` Filed: August 24, 2016
`
`
`
`
`
`
`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.
`
`Petitioner
`v.
`
`
`
`
`
`
`
`
`
`
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2015-00182
`U.S. Patent 6,772,132
`_________________
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS
`MOTION TO SUBMIT SUPPLEMENTAL INFORMATION AND
`BRIEFING UNDER 37 C.F.R. § 42.223(b)
`
`
`
`
`
`
`
` Filed: August 24, 2016
`
`
`
`
`
`
`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.
`
`Petitioner
`v.
`
`
`
`
`
`
`
`
`
`
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`Case CBM2015-00182
`U.S. Patent 6,772,132
`_________________
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS
`MOTION TO SUBMIT SUPPLEMENTAL INFORMATION AND
`BRIEFING UNDER 37 C.F.R. § 42.223(b)
`
`
`
`
`
`
`
`Case CBM2015-00182
`U.S. Patent 6,772,132
`Petitioners’ opposition makes clear that they erected their objections to TT’s
`
`
`
`use of the requested information under the district court PO simply as a roadblock.
`
`Rewarding such tactics would not serve the interests of justice. Instead, the
`
`interests of justice support allowing TT to submit these documents and briefing
`
`because the information supports TT’s positions on patent eligibility and
`
`nonobviousness, and is the most credible evidence from Petitioners.
`
`I.
`
`TT Was Not In A Position To Submit The Information Earlier
`
`TT was in no position to use this information before June 2016. TT did not
`
`have most of the information (6/8/16 and 6/9/16 Bartleman transcripts, 6/13/16
`
`Galik Transcript, Exhibits 2156, 2158, PDX 3046) before May/June of 2016.
`
`These documents were produced as a direct result of the district court’s order that
`
`certain discovery be completed for potential use in the PTAB. Ex. 2142.
`
`The three documents TT’s litigation counsel received at the end of 2015,
`
`(Exhibits 2143-2145) were produced by TS within over a hundred thousand pages
`
`of documents in the November/December 2015 time frame, which took months to
`
`cull to the relevant documents. Regardless, these documents were not authenticated
`
`until the depositions in June of 2016. And TT had no testimony on any of them,
`
`including PDX 3043 (TT webpage evidencing copying) until the June depositions.
`
`Thus, TT could not have gone to the district court with a list of what it
`
`sought to use in its Patent Owners Response (“POR”) until mid-June, when TT did
`
`
`
`1
`
`
`
`Case CBM2015-00182
`U.S. Patent 6,772,132
`just that. TT indeed withdrew its district court motion after Petitioners offered to
`
`“moot” it, but there was no obligation by TT to proceed on the same issue in two
`
`forums simultaneously (or in the district court first), and Petitioners’ “contrary”
`
`cases do not establish otherwise. For instance, the dispute in Meyer was whether
`
`Patent Owners’ could file a motion for additional discovery without violating the
`
`PO (absent Petitioners’ consent to discuss the documents therein, which TT had
`
`here). Likewise, both Daifuku and Electronic Frontier addressed whether litigation
`
`counsel could disclose confidential information to PTAB counsel under the
`
`litigation PO. Here, TT has always shared at least one litigation and PTAB counsel
`
`(Mr. Borsand) and thus there have never been such issues. Further, these non-
`
`precedential decisions contrast with other panels’ holdings that a district court PO
`
`does not bar the PTAB from ordering production. Cf. Chevron N. America, Inc. v.
`
`Milwaukee Elec. Tool Corp., IPR 2015-00595, Paper 31, at 4 (Oct. 30, 2015);
`
`Brunswick Corp. v. Cobalt Boats, LLC, IPR2015-01060, Paper 20 (Dec. 28, 2015).
`
`Petitioners’ opposition still provides no basis for their objections, but notes
`
`that they “reasonably exercised their right” under the PO.” Paper 88, at 4. This
`
`shows that Petitioners have never been concerned about any alleged sensitivity of
`
`the information, but needlessly blocked TT’s use to gain a strategic advantage. The
`
`record demonstrates TT’s diligent efforts to try to resolve the dispute without
`
`burdening this Board or the district court. For example, TT requested that TS
`
`
`
`2
`
`
`
`Case CBM2015-00182
`U.S. Patent 6,772,132
`approve of TT’s reliance on Exhibit 2144 (Matrix Requirements) on May 26, 2016,
`
`but TS refused to evaluate the request or confer until weeks later at the Bartleman
`
`depositions. Ex. 2397. On June 3, TT also sent a list of specific documents it
`
`sought to use (see Ex. 2399) and elaborated on how it would use the documents on
`
`June 8 (Ex. 2400). TT could not have relied on the information in this proceeding
`
`until the PO objections were resolved, which they now are.
`
`II. The Interests Of Justice Support That TT Be Able To Submit This
`Information and Supplemental Briefing
`
`The interests of justice dictate that this information be submitted and briefed
`
`as it strongly supports objective indicia and patent eligibility. While Petitioners
`
`argue that it is disputed whether MD_Trader embodies the claimed invention, this
`
`is not the case. The Federal Circuit recognized MD_Trader’s embodiment by the
`
`claimed invention, and TT’s POR provides claim charts from its expert, Chris
`
`Thomas, mapping the independent claims to MD_Trader. Ex. 2233; see also Ex.
`
`2169B, at ¶¶ 108-114 (further explaining how MD_Trader is embodied).
`
`Petitioners’ argument that TT is changing its theory midstream by arguing
`
`that Matrix and Booktrader are commercial embodiments of the claimed inventions
`
`similarly fails. TT’s POR shows widespread adoption of the invention by
`
`competitors (Paper 66, at 46) and provided Mr. Thomas’s claim charts mapping the
`
`claimed features to the Matrix and Booktrader products. Ex. 2233. Further, Mr.
`
`Thomas also explained public evidence of copying by Matrix. Id. at ¶¶ 115-121.
`3
`
`
`
`
`
`Case CBM2015-00182
`U.S. Patent 6,772,132
`Such evidence detailing copying and commercial success of products that embody
`
`the claimed invention is highly relevant to secondary considerations of
`
`nonobviousness. Gambro Lundia AB v. Baxter Healthcare Corp., 110 F.3d 1573,
`
`1579 (Fed. Cir. 1997) (finding commercial success and touting of advantages of
`
`infringing product, along with prominence of patented technology in ads
`
`“require[d] a holding of nonobviousness.”); see Brown & Williamson Tobacco
`
`Corp. v. Philip Morris Inc., 229 F.3d 1120, 1130 (Fed. Cir. 2000) (success of an
`
`infringing product is evidence of “commercial success of the claimed invention”).
`
`Petitioners also claim that TT has not shown a nexus between commercial
`
`success, copying, and the claimed features. This is not the case as detailed below
`
`and may also be inferred from the evidence. See Brown, 229 F.3d at 1130
`
`(inferring nexus between claims and commercial success due to the “prominence
`
`of the patented technology in [the infringer’s] advertising”).
`
`There is no prejudice or burden to Petitioners. TT’s proposed supplemental
`
`arguments do not take Petitioners by surprise: TT extensively identified relevant
`
`portions of the information along with its argument.
`
`A. Bartleman Transcripts, Exhibits 2144 and PDX 3043
`
`Mr. Bartleman’s testimony as TS’s CEO and former head of Product
`
`Management for the Matrix product contradicts Petitioners’ position that the
`
`claimed invention is not technological, but abstract. Further, when Bartleman’s
`
`
`
`4
`
`
`
`Case CBM2015-00182
`U.S. Patent 6,772,132
`testimony, Exhibit 2144, PDX 3043, and Mr. Thomas’ declaration are evaluated as
`
`a whole, they show that Mr. Bartleman
`
`
`
`
`
`
`
` Further support for nexus is detailed in Exhibit 2145 and in TT’s POR.
`
`B. Exhibits 2143, 2145, and PDX 3046
`
`TT did not quote from these exhibits due to the Board’s order. However,
`
`Exhibit 2145 touts the claimed features and resulting benefits. Exhibit 2143 shows
`
`that Matrix has become the
`
`, and PDX 3046 establishes
`
`that Matrix has
`
`
`
`. Taken together with Bartleman’s testimony and Mr.
`
`Thomas’ declaration, the touting of the claimed features in Exhibit 2145 supports
`
`the nexus between the claimed features and Matrix’s ultimate commercial success.
`
`C. Exhibits 2154, 2156, and 2158 (IB)
`
`Exhibits 2154 and 2158 support that the claimed GUIs are not abstract, but
`
`technological in nature as even IB’s CEO defined aesthetics in terms of the fonts
`
`and colors of GUIs, not their overall structure and makeup. Further, Exhibit 2156
`
`links the success of the claimed invention as a whole with its commercial success.
`
`Respectfully Submitted,
`
`By: /Rachel L. Emsley/
`Rachel L. Emsley, Reg. No. 63,558
`5
`
`
`
`Date: August 24, 2016
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`Case CBM2015-00182
`U.S. Patent 6,772,132
`
`The undersigned hereby certifies that a copy of the foregoing PATENT
`
`OWNER’S REPLY IN SUPPORT OF ITS MOTION TO SUBMIT
`
`SUPPLEMENTAL INFORMATION AND BRIEFING UNDER 37 C.F.R. §
`
`42.223(b) was served on August 24, 2016, via email directed to the following
`
`counsel of record for the Petitioner:
`
`Robert Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori Gordon
`lgordon-PTAB@skgf.com
`
`Richard Bemben
`rbemben-PTAB@skgf.com
`
`John C. Phillips
`CBM41919-0006CP1@fr.com
`
`PTAB@skgf.com
`
`
`
`Date: August 24, 2016
`
`
`
`
`
`
`
`
`
`
`
`/Valencia Daniel/
`Valencia Daniel
`Litigation Legal Assistant
`
`
`
`
`
`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
