`
`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
`_________
`
`CBM2015–00182
`Patent 6,772,132
`___________________
`
`
`PETITIONERS’ REPLY TO PATENT OWNER’S OPPOSITION
`TO PETITIONERS’ MOTION TO EXCLUDE
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313–1450
`
`
`
`
`
`
`CBM2015-00182
`Patent 6,772,132
`The Board should exclude TT’s inadmissible evidence identified in
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`Petitioners’ Motion to Exclude (Paper 102, “Mot.”). TT’s opposition (Paper 103,
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`“Opp.”) does nothing to cure its evidentiary shortcomings.
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`I. Exhibits 2029, 2211, 2216, 2218-2225, 2227-2229, 2232, 2239, 2247, 2251,
`2273-2276, 2286-2288, and 2292-2296.
`
`TT knows its testimonial evidence is inadmissible because it asked the
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`Board to waive the Federal Rules for all of its evidence. (See Ex. 2107 at 14:18-
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`19:22; 24:14-25; 27:16-25.) Having tried but failed to gain permission to ignore the
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`Federal Rules, TT now seeks absolution for having ignored the Federal Rules.
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`A. The eSpeed/CQG Transcripts and the 32 Traders’ Declarations.
`The eSpeed/CQG Transcripts and the 32 Traders’ Declarations—which are
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`undisputed hearsay—are inadmissible under FRE 807.1 TT asserts that the
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`“residual exception” applies to this evidence because it has “the same
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`circumstantial guarantees of trustworthiness” as the testimony at issue in Apple v.
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`VirnetX and as the declarations created for these proceedings. (Opp. at 5-6 (citing
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`IPR2015-00811, Paper 44).) Not true. This interpretation of Rule 807 eviscerates
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`the rule against hearsay, which provides only limited exceptions for testimony in
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`prior proceedings. See FRE 804(b)(1).
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`FRE 807 does not confer “a broad license” on judges “to admit hearsay
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`statements that do not fall within one of the other exceptions” Neste Oil OYJ v.
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`1 TT does not assert admissibility under Rules 803 or 804.
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`CBM2015-00182
`Patent 6,772,132
`REG Synthetic Fuels, LLC, IPR2013-00578, Paper 53, at 10 (P.T.A.B. Mar. 12,
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`2015) (citation omitted). It only applies in “exceptional cases.” Id. This case is not
`
`exceptional, and TT has not shown otherwise. Thus, FRE 807 does not cure TT’s
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`hearsay evidence. Nor does TT cite precedential authority holding that testimony
`
`from a prior proceeding is always admissible before the Board. Indeed, it cannot.
`
`See, e.g., Captioncall, L.L.C. v. Ultratec, Inc., IPR2015-00637, Paper 98, at 17-18
`
`(P.T.A.B. Sept. 7, 2016). TT’s reliance on Apple here is misplaced. First, both the
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`patent owner and petitioner in Apple were also parties to the underlying district
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`court litigation. See Apple, Paper 44, at 68-70. Second, the Board in Apple
`
`determined that the residual exception applied where the proponent analyzed each
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`factor of FRE 807 “in detail.” See id. 69. Here, TT provides no actual analysis
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`under FRE 807(a)(1). Third, the Board in Apple merely adopted the petitioner’s
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`analysis without explaining why that case was “exceptional.” See id. at 68-70.
`
`And TT’s hearsay evidence is not “more probative than any other evidence
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`that TT could obtain through reasonable efforts.” (Opp. at 8.) TT could have
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`obtained declarations. Indeed, it represented that it had contact with at least some
`
`of its declarants. (Ex. 2107, 25:17-26:20.) Instead, TT attempts to shift the burden
`
`to Petitioners to seek to compel their depositions. This is misguided. Petitioners’
`
`have no obligation to “cure” TT’s hearsay evidence. And TT never offered their
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`depositions in an effort to cure Petitioners’ evidentiary objections.
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`CBM2015-00182
`Patent 6,772,132
`Finally, TT’s assertion that it will be “deprived of due process” if the Board
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`excludes its evidence is meritless and does not satisfy FRE 807(a)(4). See
`
`Captioncall, Paper 98, at 17. Holding TT to the same set of evidentiary rules as
`
`every other party before the Board is not a denial of due process.
`
`B.
`
`TT’s attempt to horse trade on evidentiary issues is misguided.
`TT blames Petitioners and the Board for its evidentiary shortcomings. (See
`
`Opp. at 1-4, 8.) It asserts that there is no justification for the Board to treat the
`
`eSpeed/CQG Transcripts and 32 Traders’ Declarations differently from Petitioners’
`
`Exhibit 1019 (2005 Kawashima deposition transcript). (Opp. at 3-4.) But TT
`
`waived any objection it had to the admissibility of Exhibit 1019 because it did not
`
`move to exclude that evidence. Rather, TT conceded its admissibility. (See Paper
`
`100 at 3-6.) The uncontested admissibility of Exhibit 1019 has no bearing here.
`
`Moreover, TT was present at the 2005 deposition of Kawashima.
`
`II. Exhibit 2169 (¶¶ 75, 83-86, 89-92, 94-97, 102-104, 106-111, 126-128, 131,
`133, 134, 136-138, 140, 141, 151-153, 172).2
`Large portions of Mr. Thomas’ declaration should be excluded as improper
`
`expert testimony. (See Mot. at 11-15.) TT’s provides no defense of ¶¶ 75, 97, 104,
`
`106-111, 126-128, 131, 133, 134, 136-138, 140, 141, 151-153, 172. At a minimum,
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`these paragraphs should be excluded outright.
`
`
`2 Petitioners timely objected to Exhibit 2169. (See Paper 69 at 14-18.)
`
`
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`CBM2015-00182
`Patent 6,772,132
`As for the disputed paragraphs, TT argues that “Mr. Thomas’s statements
`
`are not improper expert testimony because an expert is allowed leeway to use
`
`hearsay reasonably.” (Opp. at 9.) But Mr. Thomas is not “interpreting” evidence,
`
`“explaining the basis for his expert opinion,” or “articulating the effect the
`
`evidence would have on a person of skill in the art” as TT erroneously suggests.
`
`(Opp. at 10.) As explained in Petitioners’ Motion, Mr. Thomas simply quotes,
`
`summarizes, and/or characterizes hearsay statements made by declarants outside of
`
`this proceeding; this is not the province of expert opinion. And contrary to TT’s
`
`suggestion, Petitioners’ arguments do not “relate to the appropriate weight to
`
`assign the evidence” because the threshold issue is whether it even qualifies as
`
`expert opinion. See United States v. Dukagjini, 326 F.3d 45, 58 (2d Cir. 2003).
`
`III. Exhibits 2210, 2223 (pages 13-14); 2240-2246, 2250, 2252-2272, 2277;
`2212, 2213, 2214.
`
`Regarding Petitioners’ authenticity objections, TT argues that “most” of the
`
`exhibits are authentic because they were produced in response to discovery
`
`requests or admitted without objection in a district court proceeding. (Opp. at 12.)
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`This argument effectively nullifies the authentication requirements of FRE 901.
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`Whether an unrelated party waived its objections to the admissibility of TT’s
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`evidence has no bearing here. TT also argues that the Third Party Emails are
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`authenticated due to their “distinctive characteristics” under FRE 901(b)(4). (Opp.
`
`at 12-13.) This argument fails as the emails are not self-authenticating under FRE
`
`
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`- 4 -
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`
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`CBM2015-00182
`Patent 6,772,132
`902, and TT has offered no extrinsic evidence to show the existence of any such
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`characteristics. See, e.g., Devbrow v. Gallegos, 735 F.3d 584, 586 (7th Cir. 2013).
`
`Regarding hearsay, TT argues that the Third Party Emails are not offered for
`
`their truth but rather “to show secondary considerations.” (Opp. at 14.) Secondary
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`considerations are not an exception to rule against hearsay. See, e.g., Captioncall,
`
`Paper 98, at 15. And TT’s assertion that these exhibits are admissible regardless of
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`whether they are hearsay because Mr. Thomas relied upon them is also wrong. The
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`mere fact that an expert purports to rely on a document does not cause that
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`document to be admissible. In re James Wilson Assocs., 965 F.2d 160, 173 (7th
`
`Cir. 1992).
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`Finally, TT provides no defense of the Brumfield Sketch and Animations
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`and therefore the Board should exclude Exhibits 2212, 2213, 2214.
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`IV. Exhibits 2030, 2032, and 2278.
`TT makes the incredible argument that these exhibits are offered for the
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`purpose of showing how a third-party and a jury reacted to the evidence in these
`
`proceedings. (Opp. at 15.) But as explained in Petitioners’ Motion, the third-party’s
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`and jury’s reactions to the evidence in these proceedings does nothing to make any
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`facts in this proceeding more or less probable. (See Mot. at 9-10.)
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`CBM2015-00182
`Patent 6,772,132
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`
`
`/ Robert E. Sokohl /
`
`
`
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
`
`Date: October 14, 2016
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`- 6 -
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`
`
`
`
`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that the foregoing PETITIONERS’
`
`REPLY TO PATENT OWNER’S OPPOSITION TO MOTION TO
`
`EXCLUDE was served electronically via e–mail on October 14, 2016, in its
`
`entirety on Attorneys for Patent Owner:
`
`Erika H. Arner, Joshua L. Goldberg, Kevin D. Rodkey,
`Rachel L. Emsley, Cory C. Bell
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`
`Erika.arner@finnegan.com
`Joshua.goldberg@finnegan.com
`Kevin.rodkey@finnegan.com
`Rachel.emsley@finnegan.com
`Cory.bell@finnegan.com
`Trading–Tech–CBM@finnegan.com
`
`Steven F. Borsand
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`tt–patent–cbm@tradingtechnologies.com
`
`Michael D. Gannon, Leif R. Sigmond, Jr., and Jennifer M. Kurcz
`MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`gannon@mbhb.com
`sigmond@mbhb.com
`kurcz@mbhb.com
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`
`/ Robert E. Sokohl /
`
`
`Date: October 14, 2016
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
`
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