Paper No.
`Filed: May 12, 2016
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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, and
`INTERACTIVE BROKERS LLC,
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`
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`Petitioner
`v.
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` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
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`Patent Owner
`_________________
`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
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`Patent Owner’s Objections to
`Evidence Pursuant to 37 C.F.R. § 42.64
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`Filed: May 12, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`
`
`IBG LLC, and
`INTERACTIVE BROKERS LLC,
`
`
`
`Petitioner
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner
`_________________
`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
`
`
`
`
`
`
`
`
`Patent Owner’s Objections to
`Evidence Pursuant to 37 C.F.R. § 42.64
`
`
`
`
`
`
`
`
`
`
`
`
`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
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`
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner objects to the following
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`Petitioners’ Exhibits:
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`• 1003 (Expert Declaration of Kendyl A. Roman)
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`• 1004 (Expert Declaration of David Rho)
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`• 1005 (U.S. Patent No. 5,077,665 to Silverman et al.);
`
`• 1006 (U.S. Patent No. 5,297,031 to Gutterman et al.);
`
`• 1007
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`(“Futures/Option Purchasing System Trading Terminal
`
`Operation Guide,” Tokyo Stock Exchange);
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`• 1008 (English Translation of “Futures/Option Purchasing System
`
`Trading Terminal Operation Guide,” Tokyo Stock Exchange );
`
`• 1009 (Certificate of Translation for “Futures/Option Purchasing
`
`System Trading Terminal Operation Guide”);
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`• 1010 (WO 90/11571 to Belden et al.);
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`• 1011 (Deposition Transcript of Atsushi Kawashima dated November
`
`21, 2005);
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`• 1016 (Mark J. Powers, "Starting Out in Futures Trading," Sixth
`
`Edition)
`
`• 1018 (Weiss, “After the Trade is Made”);
`1
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
`• 1020 (Ben Shneiderman, “Designing the User Interface: Strategies for
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`Effective Human-Computer Interaction,” Third Edition);
`
`• 1021 (Robert Deel, “The Strategic Electronic Day Trader”);
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`• 1025 (Inside Macintosh, Promotional Edition, Apple Computer, Inc.).
`
`• 1026 (Alan Cooper, “About Face: The Essentials of User Interface
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`Design”);
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`I.
`
`OBJECTION TO PETITIONERS’ EXHIBITS 1003 and 1004
`
`Patent Owner objects to Exhibit 1003 because it contains unreliable
`
`testimony under FRE 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
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`(1993). In particular, Mr. Román’s declaration includes numerous purported
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`“expert” opinions on matters about which Mr. Román is not qualified to offer such
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`“expert” testimony. Mr. Román has insufficient knowledge, skill, experience,
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`training, and education regarding trading and/or trading GUI design. Yet Mr.
`
`Román repeatedly opines about the understanding of a person of ordinary skill in
`
`the art in the relevant time period with respect to such subjects. See, e.g., ¶¶ 86, 88,
`
`94, 98-99, 110, 117-121, 124, and 132-133.
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`Patent Owner objects to Exhibit 1004 because it contains unreliable
`
`testimony under FRE 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
`
`(1993). In particular, Mr. Rho’s declaration includes numerous purported “expert”
`
`2
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
`opinions on matters about which Mr. Rho is not qualified to offer such “expert”
`
`testimony. Mr. Rho has insufficient knowledge, skill, experience, training, and
`
`education regarding GUI design and/or trading GUI design. Yet Mr. Rho
`
`repeatedly opines about the understanding of a person of ordinary skill in the art in
`
`the relevant time period with respect to such subjects. See, e.g., ¶¶ 48, 50, 54, and
`
`58.
`
`II.
`
`OBJECTION TO PETITIONERS’ EXHIBITS 1005-1010, 1016, 1018,
`
`1020-1021, 1025, 1026, and 1031-1033
`
`Patent Owner objects to Exhibits 1005-1010, 1016, 1018, 1020-1021, 1025,
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`1026, and 1031-1033 to the extent that Petitioners rely on their contents for the
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`truth of the matters asserted therein. Exhibits 1005-1010, 1016, 1018, 1020-1021,
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`1025, 1026, and 1031-1033 are inadmissible hearsay under FRE 801 and 802, and
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`no exception applies.
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`III.
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`OBJECTION TO PETITIONERS’ EXHIBITS 1007-1009
`
`Petitioners have submitted no evidence to authenticate Exhibit 1007, and
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`deficient evidence for Exhibit 1008 as set forth below, making both inadmissible
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`under FRE 901.
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`Patent Owner also objects to Exhibit 1007-1009 under FRE 602. Petitioners
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`fail to provide a credible translation of TSE and fail to conform with the Board’s
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`3
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
`rules for submitting translations of foreign language documents. In particular, 37
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`C.F.R. § 42.63(b) requires that “[w]hen a party relies on a document or is required
`
`to produce a document in a language other than English, a translation of the
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`document into English and an affidavit attesting to the accuracy of the translation
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`must be filed with the document.” The record lacks such an affidavit under Rule
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`42.63(b) attesting to the accuracy because Mr. Cohen: (1) incorrectly refers to
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`“2014.05.19 - 1003 – TSE” as an English translation; and (2) on information and
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`belief, he did not, himself, translate the Japanese language TSE into English,
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`thereby demonstrating his lack of personal knowledge regarding the matter for
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`which he is testifying. See FRE 602 (requiring personal knowledge to testify to a
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`matter). Exhibit 1009 is noncompliant with 37 C.F.R. § 42.63(b). This makes
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`Exhibit 1007 and 1008 inadmissible under 37 C.F.R. § 42.61(a) (“Evidence that is
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`not taken, sought, or filed in accordance with this subpart is not admissible.”).
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`Furthermore, Exhibit 1008 is an inherently subjective translation from Japanese to
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`English and prejudicial and misleading under FRE 403.
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`Patent Owner further objects to Exhibit 1007 under FRE 403 and FRE
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`1003. The copy of the Japanese language TSE document (Exhibit 1007) is illegible
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`in many places (e.g., 54-63, 91-120, 137-143) and therefore cannot be used to
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`verify the accuracy of the translation.
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`4
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
`Patent Owner further objects to Exhibit 1008 under FRE 403. Petitioners’
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`Exhibit 1008 substitutes nearly verbatim Patent Owner’s own translation of the
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`TSE’s Chapter 7 for the inaccurate translation previously provided by Petitioners’
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`counsel. Compare Ex. 1008, 91-120 with Ex. 2020, Appx. E (CBM2014-00131
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`Ex. 2097). Despite having copied Patent Owner’s translation into Exhibit 1008, on
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`pages 7-25 and 7-26 (Exhibit 1008, 115-116), Petitioners omit two translator’s
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`notes from Patent Owner’s original translation (Ex. 2020, 98-99). Exhibit 1008 is
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`therefore incomplete, misleading, and inadmissible under FRE 403.
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`IV.
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`OBJECTION TO PETITIONERS’ EXHIBIT 1011
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`Patent Owner objects to Exhibit 1011 to the extent that Petitioners rely on its
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`contents for the truth of the matters asserted therein. Exhibit 1011 is inadmissible
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`hearsay under FRE 801 and 802, and no exception applies.
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`Patent Owner also objects to portions of Exhibit 1011 under FRE 401 and
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`402 as irrelevant, or in the alternative, under FRE 403 as prejudicial and waste of
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`time. Petitioners have cited only to 22 pages of the over 100-page exhibit. The
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`uncited portions are irrelevant, and, to the extent relevant, are prejudicial and a
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`waste of time.
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`V.
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`OBJECTION TO PETITIONERS’ EXHIBIT 1005
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`5
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
`Petitioners rely on Exhibit 1005 as disclosing certain features of the claims
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`of the ’055 patent. However, Exhibit 1005 is irrelevant to the grounds (§§ 101 and
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`103) instituted by the Board, and is therefore inadmissible under FRE 401 and 402
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`because it lacks a tendency to make any fact at issue in this proceeding more or
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`Respectfully submitted,
`
`By: /Rachel L. Emsley/
`Rachel L. Emsley, Backup Counsel
`Registration No. 63,558
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`
`
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`less probable.
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`Dated: May 12, 2016
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`6
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`Case CBM2016-00009
`U.S. Patent 7,685,055 B2
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing Patent
`
`
`
`Owner’s Objections to Evidence Pursuant to 37 C.F.R. § 42.64 were served on
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`May 12, 2016, via email directed to counsel of record for the Petitioner at the
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`following:
`
`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori Gordon
`lgordon-PTAB@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`PTAB@skgf.com
`
`
`
`
`/Valencia Daniel/
`Valencia Daniel
`Litigation Legal Assistant
`
`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
`
`
`
`
`
`Dated: May 12, 2016
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