throbber
U N I T E D S T A T E S P A T E N T A N D T R A D E M A R K O F F I C E
`
` B E F O R E T H E P A T E N T T R I A L A N D A P P E A L B O A R D
`
`Page 1
`
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`
`I B G L L C a n d I N T E R A C T I V E B R O K E R S L L C ,
`
` P e t i t i o n e r ,
`
` v s .
`
`T R A D I N G T E C H N O L O G I E S I N T E R N A T I O N A L , I N C . ,
`
` P a t e n t O w n e r .
`
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`
` C a s e C B M 2 0 1 6 - 0 0 0 0 9 ; P a t e n t 7 , 6 8 5 , 0 5 5 B 2
`
` T E L E P H O N I C C O N F E R E N C E
`
` B E F O R E T H E P A T E N T T R I A L A N D A P P E A L B O A R D
`
` H O N O R A B L E M E R E D I T H C . P E T R A V I C K
`
` H O N O R A B L E S A L L Y C . M E D L E Y
`
` H O N O R A B L E J E R E M Y M . P L E N Z L E R
`
` D e c e m b e r 1 4 , 2 0 1 6
`
` 9 : 0 0 a . m .
`
`R e p o r t e d b y : K u r t M . S p e n c e r
`
`1
`
`2
`
`3 4
`
`5
`
`6 7
`
`8
`
`9
`
`1 0
`
`1 1
`
`1 2
`
`1 3
`
`1 4
`
`1 5
`
`1 6
`
`1 7
`
`1 8
`
`1 9
`
`2 0
`
`2 1
`
`2 2
`
`2 3
`
`2 4
`
`2 5
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 2
`
` U N I T E D S T A T E S P A T E N T A N D T R A D E M A R K O F F I C E
`
` B E F O R E T H E P A T E N T T R I A L A N D A P P E A L B O A R D
`
` - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`
`I B G L L C , I N T E R A C T I V E B R O K E R S L L C , T R A D E S T A T I O N
`
`G R O U P , I N C . , T R A D E S T A T I O N S E C U R I T I E S , I N C . ,
`
`T R A D E S T A T I O N T E C H N O L O G I E S , I N C . , a n d I B F X ,
`
`I N C . ,
`
` P e t i t i o n e r ,
`
` v s .
`
`T R A D I N G T E C H N O L O G I E S I N T E R N A T I O N A L , I N C . ,
`
` P a t e n t O w n e r .
`
` - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`
` C a s e C B M 2 0 1 5 - 0 0 1 8 2 ; P a t e n t 6 , 7 7 2 , 1 3 2 B 1
`
` C a s e C B M 2 0 1 5 - 0 0 1 8 1 ; P a t e n t 7 , 6 7 6 , 4 1 1 B 2
`
`1 2
`
`3
`
`4 5
`
`6 7
`
`8
`
`9
`
`1 0
`
`1 1
`
`1 2
`
`1 3
`
`1 4
`
`1 5
`
`1 6
`
`1 7
`
`1 8
`
`1 9
`
`2 0
`
`2 1
`
`2 2
`
`2 3
`
`2 4
`
`2 5
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 3
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ----------------------------------------------
`
`TRADESTATION GROUP, INC. and TRADESTATION
`
`SECURITIES, INC.,
`
` Petitioner,
`
` vs.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
` Patent Owner.
`
`-----------------------------------------------
`
` Case CBM2015-00161; Patent 6,766,304 B2
`
` Case CBM2015-00172; Patent 7,783,556 B1
`
`1 2
`
`3
`
`4 5
`
`6 7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 4
`
` 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., IBFX, INC.,
`
`CQG, INC., and CQGT, LLC,
`
` Petitioner,
`
` vs.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
` Patent Owner.
`
`-----------------------------------------------
`
` Case CBM2015-00179; Patent 7,533,056 B2
`
` ~ ~ ~ ~ ~
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`1 2
`
`3
`
`4 5
`
`6 7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`
`Page 5
`
` JUDGE PETRAVICK: Ms. Kurcz, after
`
`the conference, could you make sure that the
`
`transcript gets filed into the case, as an
`
`exhibit.
`
` MS. KURCZ: I will, Your Honor.
`
` JUDGE PETRAVICK: Thank you. We
`
`will hear from the Patent Owner first, since
`
`they requested the call. Let's start with the
`
`supplemental briefing issue.
`
` MS. KURCZ: Thank you, Your Honor.
`
`Patent Owner respectfully requests
`
`authorization to file additional submissions
`
`pursuant to 37 CFR Section 42.20.
`
` Specifically, Patent Owner requests
`
`permission to provide a submission to explain
`
`the relevance of the following decisions that
`
`issued, after Patent Owner's July 21, 2016
`
`response.
`
` I would like to address a few
`
`issues to establish why there is good cause for
`
`this relief. First of all, the timing of this
`
`request. The cases that we have cited before
`
`Your Honors are all intervening. That is, they
`
`issued between the time after we filed our
`
`Patent Owner's response in July, through the
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 6
`
`present time.
`
` As trial is just a few weeks away,
`
`now is an appropriate time to present
`
`intervening case law that's issued to date,
`
`cases that are highly relevant to issues that
`
`are before this tribunal, in which, Trading
`
`Technologies would like to address at the
`
`hearing before Your Honors.
`
` The scope of Trading Technologies'
`
`request is also reasonable. Trading
`
`Technologies requests filing of a summary, with
`
`respect for each case, contained in one paper.
`
`That would be akin to a citation of a
`
`supplemental authority that would be filed in
`
`the Federal Circuit. That is for each case,
`
`we're proposing three hundred and fifty words
`
`to address the portion of the case that is
`
`relevant to the issues before Your Honors, as
`
`well as how it relates to pending arguments
`
`from both sides.
`
` Trading Technologies would not
`
`object to Petitioners filing a similar paper.
`
`In the conferral, Petitioner has indicated that
`
`they may also be interested in filing a paper
`
`as well.
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`888-391-3376
`
`

`
`Page 7
`
` Trading Technologies would also
`
`propose that each side could file a three
`
`hundred fifty-word response with respect to
`
`each case that is raised by the other side,
`
`which, again, would be in accordance with
`
`appellate practice for a similar citation of
`
`supplemental authority.
`
` And, Trading Technologies' basis
`
`for its request -- we are seeking only to find
`
`cases that we believe are impactful to the
`
`issues before Your Honors. They are
`
`significant cases that, all cases that Trading
`
`Technologies would have included in its Patent
`
`Owner's response, had they issued prior to the
`
`filing our Patent Owner's response.
`
` For instance, with respect to 101,
`
`you know, the Supreme Court has said that it is
`
`appropriate to compare claims of prior cases
`
`against those before Your Honors.
`
` So, with respect to the McRo and
`
`Amdocs cases, we'd like to cite out to Your
`
`Honors as to how those cases are relevant and
`
`analogous to Trading Technologies' claims.
`
`And, why that sheds light on the eligibility of
`
`Trading Technologies' claim.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 8
`
` With respect to 103 issues, issues
`
`of whether or not the claims are obvious, we
`
`believe that the cases that we have identified
`
`before Your Honors shed light on arguments to
`
`establish why Petitioners cannot have been
`
`found to have met their burden under 103. For
`
`instance, with respect to GoPro, this case
`
`sheds light on the fact that TSE is not prior
`
`art.
`
` With respect to Immunivasive (ph.),
`
`this sheds light on a couple of issues. The
`
`first being that there must be specific
`
`evidence of a motivation to combine. And,
`
`secondly, that there are APA standards on an
`
`opportunity to respond.
`
` A Petitioner cannot make a new
`
`argument in their Reply, because it's a private
`
`patent owner's ability to adequately and fairly
`
`respond, because there is no other avenue to
`
`address that. And, that's depriving Trading
`
`Technologies of its due process.
`
` Also, relevant to motivation to
`
`combine is the Apple v. Samsung case, which we
`
`have also identified before Your Honors, which
`
`is this en banc's opinion that says that there
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 9
`
`must be actual evidence of a specific
`
`motivation to combine.
`
` JUDGE PETRAVICK: Let me ask you a
`
`question.
`
` MS. KURCZ: Yes, Your Honor.
`
` JUDGE PETRAVICK: These 103 cases,
`
`they're not presenting new law. In raising
`
`these --
`
` MS. KURCZ: Well --
`
` JUDGE PETRAVICK: -- cases, right?
`
`Motivation to combine is not new law, I mean,
`
`requiring motivation is not new law. It didn't
`
`come out of these new cases.
`
` And, in fact, in your Patent
`
`Owner's response, you do argue that there's no
`
`motivation to combine.
`
` What's new that's added by these
`
`cases, other than, you know, they're cases that
`
`seek new law that would apply to this briefing?
`
`Other than, that you want to cite more cases
`
`that further support what you've already argued
`
`in your Patent Owner's response. What's new?
`
` MS. KURCZ: Sure, Your Honor.
`
`Well, you know, like with respect to Apple v.
`
`Samsung, that is actually an en banc opinion,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 10
`
`so that would be controlling over, I would say,
`
`a non-en banc opinion.
`
` And, we think that it's
`
`significant. There isn't, for instance, at the
`
`Federal Circuit, there's not a rule that you
`
`can only cite Supreme Court authority, instead,
`
`the rule is whether or not the authority is
`
`significant.
`
` And, we believe that these cases
`
`are highly significant to the issues before
`
`Your Honors, because it applies factual
`
`scenarios under governing standards creating
`
`new law. And, certainly, with respect to 101
`
`issues as well, the Supreme Court, itself, has
`
`said that when analyzing patent eligibility,
`
`the Court should look at, and compare and
`
`contrast, claims of other cases.
`
` And, the Court should always look
`
`at --
`
` JUDGE PETRAVICK: Ma'am, I'm --
`
` MS. KURCZ: -- case law that's
`
`relevant.
`
` JUDGE PETRAVICK: I'm familiar with
`
`the 103 issues.
`
` MS. KURCZ: I'm sorry to get off
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 11
`
`track, Your Honor.
`
` JUDGE PETRAVICK: That's fine. Let
`
`me ask you another question.
`
` MS. KURCZ: Sure.
`
` JUDGE PETRAVICK: I mean, GoPro is
`
`a Board case that's not precedential, and not
`
`binding this Panel. So, what would be new on
`
`that, especially, for a printed publication
`
`issue, which is fact specific?
`
` MS. KURCZ: We think that the facts
`
`in GoPro are highly, highly analogous to those
`
`before Your Honors.
`
` JUDGE PETRAVICK: I mean, it's not
`
`new law, correct? I mean, this is applying old
`
`law.
`
` MS. KURCZ: Well, it's certainly
`
`another panel opinion to be highly persuasive
`
`to other panels. And, there also cannot be
`
`conflicting panels. And, so, there cannot be a
`
`ruling that conflicts with GoPro.
`
` So, that's, you know, our basis is
`
`that this Court should apply --
`
` JUDGE PETRAVICK: You're asking for
`
`us to file a briefing about what the case says.
`
`But, these are. I mean, you're telling us that
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 12
`
`you really want to compare to the facts. And,
`
`these are the facts for specific
`
`determinations.
`
` So, what would be good cause for
`
`adding cases that are just applying, you know,
`
`old law, law that you've already argued in your
`
`Patent Owner's response?
`
` MS. KURCZ: Your Honor, again, I
`
`don't think that this is, you know, I disagree
`
`with that it is old law. I believe, that any
`
`time there's a new case that applies facts in a
`
`different way that that is new law. That
`
`should be examined. It can't be conflicting.
`
` Especially, for instance, in GoPro,
`
`where the factual scenario is highly analogous,
`
`and that there's no evidence it was ever
`
`submitted to (inaudible.) There cannot be
`
`conflicting rulings from panels against that.
`
` So, we submit that Your Honors, you
`
`know, must look at these other cases. They're
`
`significant. We should, at least, be entitled
`
`to make our argument.
`
` JUDGE PETRAVICK: So, what you
`
`really want is not only do you want to tell us
`
`about these cases, with the most cases cited,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 13
`
`you want to provide, you know, quick, more
`
`substantial briefings.
`
` MS. KURCZ: Well, Your Honor, we --
`
` JUDGE PETRAVICK: You want to apply
`
`them to the facts of this case.
`
` MS. KURCZ: Your Honor, we've only
`
`asked for three hundred fifty words. You
`
`really can't do a lot of that in three hundred
`
`fifty words. We thought that that would be
`
`similar to what happens at the Federal Circuit.
`
` And, so, we really can't go through
`
`all the facts, as you would know, in three
`
`hundred and fifty words.
`
` But, what we hoped to do was to try
`
`to, at least, provide a road map to Your
`
`Honors, as to why these cases are highly
`
`relevant, and should be highly persuasive to
`
`these issues. And, with respect to Apple,
`
`that's an en banc opinion as well. That's
`
`control.
`
` JUDGE PETRAVICK: Okay. I
`
`understand what you're looking for. Do you
`
`have anything else on this topic?
`
` MS. KURCZ: I just wanted to point
`
`out one other issue, if I may, Your Honor, is
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 14
`
`that, as I said in the e-mail, Petitioners do
`
`not object to identification of the Amdocs and
`
`the McRo cases.
`
` And, I believe, that they're, and
`
`I'll let them speak. But, I believe, that they
`
`agree that we could brief, you know, that they
`
`may, at least, want to cite other cases as
`
`well.
`
` And, I'll reserve the rest of the,
`
`you know, I know we had sent another e-mail to
`
`Your Honor. Were you planning on addressing
`
`that at the end of Petitioner's --
`
` JUDGE PETRAVICK: We'll address
`
`that next. Yes, one topic at a time.
`
` MS. KURCZ: Okay. Thank you, Your
`
`Honor.
`
` JUDGE PETRAVICK: Petitioner.
`
` MR. SOKOHL: Yes, Your Honor.
`
`Thank you. So, we're not opposed to parties
`
`bringing relevant, positive precedential cases
`
`to the Court's attention. But, as you point
`
`out, there's no new law being cited in these
`
`cases.
`
` And, as to turn in a briefing, I
`
`think counsel just provided you the relevance
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 15
`
`of these cases, or, at least, in their view.
`
` It appears to us that Trading
`
`Technologies just wants to continuously bring
`
`101 and 103 cases to the Court's attention.
`
`And, we do disagree strongly with the relevance
`
`of these cases. I'm not going to go through
`
`each case.
`
` But, Apple, and Samsung, and Wynd
`
`are just not relevant in this case. The fact
`
`that one case is en banc doesn't make it
`
`instructive of the issues in this case. They
`
`were just reversing a Panel decision. They
`
`didn't even hold oral hearings in this case.
`
` The case cited by Trading
`
`Technologies from the Board, the GoPro case, as
`
`you pointed out, Your Honor, is a mock
`
`precedential panel decision that is really
`
`irrelevant.
`
` It's the Federal Circuit case law
`
`that is relevant. That's been cited by both
`
`parties in their briefs. That's the
`
`controlling law. That's the precedential law.
`
`That's the laws that the Court has to follow.
`
` And, in citing the two 101 cases, I
`
`agree with counsel that every, you know, the
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 16
`
`101 cases can be instructive. But, there are
`
`going to be countless 101 cases between now and
`
`prior written authorization.
`
` And, we're going to be seeking some
`
`guidance as to what the appropriate mechanism,
`
`and the character of the case is that should be
`
`brought to the Board's attention.
`
` I think it's noteworthy that
`
`counsel continues to cite 101 cases, but, then,
`
`leaves out a very highly relevant case from
`
`Federal Circuit that came out about a week or
`
`two ago, Apple v. Ameranth, A-M-E-R-A-N-T-H,
`
`which is relevant to whether or not it is first
`
`ineligible in a statutory subject matter. And,
`
`the case concluded that --
`
` JUDGE PETRAVICK: You don't have to
`
`tell me about that case. I wrote the Panel,
`
`the PTAB decision in that case.
`
` MR. SOKOHL: Yes, perfect.
`
` JUDGE PETRAVICK: I am intimately
`
`familiar with the facts of that case.
`
` MR. SOKOHL: Perfect. So, the
`
`point is, is that they're not bringing all the
`
`cases that are relevant to the Board's
`
`attention. So, you know, we just don't think,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 17
`
`bringing cases to the Board's attention is one
`
`thing, but, we don't think further briefing at
`
`this time, would be instructive to the Board.
`
`You are familiar with Federal Circuit Board's
`
`decision, as she just points out.
`
` JUDGE PETRAVICK: Yes.
`
` MR. SOKOHL: And, I think, that
`
`that's sufficient.
`
` JUDGE PETRAVICK: All right. Thank
`
`you. Patent Owner, do you have any other
`
`comments on this topic?
`
` MS. KURCZ: Only Your Honor, just
`
`that these are our property rights. And, we
`
`believe that we are entitled to present every
`
`significant authority to Your Honors that
`
`impact our property rights.
`
` And, we believe that it should be,
`
`you know, we're not asking for an unreasonable
`
`length of a submission. We haven't asked for
`
`every single case that was ever issued. We've
`
`only identified ones that we believe are
`
`significant and pertinent to the issues before
`
`Your Honors. And, so, we respectfully request
`
`authorization to file something short akin to a
`
`citation of a supplemental authority.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 18
`
` JUDGE PETRAVICK: Okay. Thank you.
`
`Let's move onto topic No. 2. Patent Owner, can
`
`you tell us about your request for
`
`authorization for a Motion, your renewed
`
`request for an authorization for a Motion to
`
`Strike.
`
` MS. KURCZ: Thank you, Your Honor.
`
`Trading Technologies renews its request to file
`
`a Motion to Strike Petitioner's reply. While
`
`the Board previously allowed Trading
`
`Technologies to file page and line numbers with
`
`respect to arguments that Trading Technologies
`
`had identified in Petitioner's reply that were
`
`new.
`
` Trading Technologies also wanted to
`
`call to the Board's attention new testimony
`
`from Petitioner's expert, Mr. Rowe, who
`
`recently admitted that his Declaration
`
`contained new arguments.
`
` Specifically, with respect to
`
`Section 4(a)3, which is switching from Board
`
`times four to Board times two.
`
` Mr. Rowe admitted that that wasn't,
`
`his opinion on that was not in his prior
`
`Declaration. It was a new opinion.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 19
`
` And, the same thing with respect to
`
`Section 4(a)1(d) of Petitioner's reply
`
`regarding TSE's compressed rolling mode is also
`
`static. Mr. Rowe also admitted that that
`
`opinion was not in his prior Declaration.
`
` You know, importantly, Mr. Rowe
`
`also admitted that he had rendered an opinion
`
`without even examining the file history.
`
` And, I think, all of this new
`
`evidence really underscores the point we were
`
`trying to make before is that, you know, it's
`
`very evident to us that the Petitioner's reply
`
`contains new arguments.
`
` It's highly prejudicial to us to
`
`have new arguments, never raised before in a
`
`Petition, now, being raised for the first time
`
`in a reply when we have no mechanism to respond
`
`to that.
`
` And, given the really tight
`
`timeframe between now, and the trial on January
`
`6th, is the only possible remedy that would
`
`cure this problem in view of the compressed
`
`timeframe would be to strike the Reply.
`
` However, alternatively, if Trading
`
`Technologies requests, if the Board is
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 20
`
`unwilling to strike the Reply before the trial
`
`on January 6th, that Trading Technologies
`
`requests the schedule be extended so Trading
`
`Technologies can respond to these new arguments
`
`with a short brief. We are proposing
`
`sixty-five hundred words, an expert
`
`Declaration, and, to fully respond to these
`
`arguments.
`
` Again, as I said, these are our
`
`property rights. We should have an opportunity
`
`to respond to every argument that's been
`
`alleged, and asserted against these property
`
`rights. And, the Federal Circuit --
`
` JUDGE PETRAVICK: Let me ask you a
`
`question really quick.
`
` MS. KURCZ: Sure.
`
` JUDGE PETRAVICK: I'll interject
`
`here. So, we've already let you file. Our
`
`rules say that no new arguments are going to be
`
`considered. We've already let you file a
`
`listing what you consider, allege to be the new
`
`arguments. And, last night, you filed a Motion
`
`for Observation, you know, pointing out what
`
`you think is Mr. Rowe's testimony on this
`
`issue.
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`888-391-3376
`
`

`
`Page 21
`
` And, our rules say that new
`
`arguments, or improper arguments that are not
`
`within the scope of the Reply, aren't
`
`considered. Why isn't that sufficient?
`
` You've already had an opportunity
`
`to point out to us what you think, or what you
`
`allege are the new arguments.
`
` If they're not considered, then,
`
`why is that not sufficient? Why do you need to
`
`file a briefing on the issue?
`
` MS. KURCZ: That's a good question,
`
`Your Honor, thank you. At this point, we don't
`
`know what the Board will rule yet. I mean,
`
`those are pending before Your Honors, and there
`
`hasn't been a ruling.
`
` I mean, we feel very confident in
`
`our position. However, we believe we would be
`
`greatly prejudiced absent striking of those
`
`arguments. And, we're trying to explore and
`
`exhaust every possible remedy to address that
`
`issue.
`
` And, so, that's why we're
`
`alternatively proposing briefings in the event
`
`that we don't --
`
` JUDGE PETRAVICK: Why do you need
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 22
`
`briefings --
`
` MS. KURCZ: -- hear by now.
`
` JUDGE PETRAVICK: Why do you need
`
`briefings to consider arguments that can't be
`
`considered under the rules?
`
` MS. KURCZ: Well, my only point is
`
`that I don't know how Your Honors are ruling
`
`yet. And, to fully protect Trading
`
`Technologies' interests, we are seeking,
`
`alternatively, if we don't hear, you know, very
`
`soon on the ruling, we're not going to know,
`
`prior to the hearing if, you know, what is in
`
`and out.
`
` And, presumably, Petitioners may
`
`seek to try to raise these arguments. And, we
`
`will not have a mechanism to address and
`
`respond to these arguments. It's, of course
`
`not in our response, because they weren't in
`
`the Petition, you know. They weren't in the
`
`institution decision.
`
` So, we just want to make sure that
`
`we're exhausting every avenue to fully address
`
`these arguments to the extent that the Board
`
`does not make a ruling on this soon, then,
`
`Trading Technologies alternatively requests,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 23
`
`you know, an extension of the schedule.
`
` Of course, we would much rather
`
`prefer that the Board just strike the new
`
`arguments now so we know what's in and out.
`
` But, alternatively, if you know the
`
`Board's not inclined to do that, we just don't
`
`want to be in this situation where the Board
`
`disagrees with us, and we're not able to
`
`respond to the new arguments.
`
` JUDGE PETRAVICK: Okay.
`
`Mr. Sokohl, would you like to respond?
`
` MR. SOKOHL: Yes, Your Honor.
`
`Without getting into the substance of the
`
`issue, we, obviously, disagree that the
`
`Petitioner has not supplied fair arguments.
`
` The Board has already provided
`
`Trading Technologies' relief. They've provided
`
`a listing, we wrote responses to that listing.
`
`Mr. Rowe's issues did not change anything.
`
` As to further briefing, I would
`
`note that this request is just untimely.
`
`Trading Technologies first notified the Board
`
`on November 14th. But, no mention of
`
`supplemental briefing was made at that time.
`
` We are almost three weeks away from
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 24
`
`the hearing, with two major holidays in
`
`between. Trading Technologies now wants to
`
`file a supplemental briefing along with a
`
`Declaration. I hear for the first time today
`
`they want sixty-five hundred words, which is
`
`more words than we got for an entire reply.
`
` We would need to have to file a
`
`supplemental reply to that, depose their
`
`witness, file observations. It is just not
`
`feasible to do all that in this timeframe.
`
` And, I think, that Trading
`
`Technologies should have asked if they wanted
`
`supplemental briefing prior to this. So, at
`
`the bottom, we think the request is untimely.
`
` Furthermore, as counsel for Trading
`
`Technologies points out, Mr. Rowe, merely said
`
`that the opinion and his supplemental
`
`Declaration did appear in his original
`
`Declaration. That doesn't mean he says that
`
`these are new arguments. That doesn't mean
`
`that Petitions and other evidence, Petitioners
`
`didn't support the Reply.
`
` The purpose of the trial is to, as
`
`the Federal Circuit pointed out, is to create a
`
`record. And, the remarks that Trading
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 25
`
`Technologies complains about are directly
`
`responsive to arguments set forth in their
`
`appeal.
`
` And, we are allowed to present our
`
`counter-arguments, and that's what we have
`
`done. At the end of the day, if the Board
`
`doesn't accept Trading Technologies narrow time
`
`construction, these arguments are mute anyway.
`
` We believe that the ATA is a
`
`two-way street. We are last presenting our
`
`arguments, particularly, when Trading
`
`Technologies comes forth with narrow-claim
`
`constructions. And, again, these are all
`
`supported by the decision, as you pointed out
`
`in our list.
`
` Now, the appropriate vehicle for
`
`bringing Mr. Rowe's testimony to the Board's
`
`attention is a Motion for Observations, which
`
`they have filed yesterday. And, so, there's no
`
`need for further briefing. They've already
`
`brought testimony to the Board's attention.
`
` Furthermore, yesterday, they also
`
`filed, Trading Technologies, a Motion to
`
`Exclude, including a Motion to Exclude Portions
`
`of the Reply.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 26
`
` And, so, we would suggest that
`
`they've already had their briefing on this
`
`point.
`
` JUDGE PETRAVICK: Thank you.
`
`Ms. Kurcz, any final thoughts?
`
` MS. KURCZ: Thank you, Your Honor.
`
`We disagree that we waived anything as an
`
`initial matter. This is new evidence that just
`
`came out last week. It's a new basis to
`
`further strike the Reply. We didn't have that
`
`basis when we initially requested. And, we
`
`haven't gotten a ruling on our request to
`
`strike. And, so, that's the additional basis,
`
`as to wanting to be able to fully respond.
`
` And, I agree with Mr. Sokohl that
`
`there wouldn't be time. But, I think, that's
`
`exactly why, if Your Honors aren't inclined to
`
`rule on the strike, that we should have an
`
`extension of time, you know, if Your Honors are
`
`not inclined to strike those portions of the
`
`Reply.
`
` The trial is to create a record.
`
`But, it's also to make sure that everyone's
`
`rights are being preserved, especially, the
`
`Patent Owner's. We should be entitled to
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 27
`
`respond to the new arguments.
`
` And, Mr. Rowe, his acknowledgement
`
`that these are new arguments, they're new, his
`
`new testimony in his reply Declaration. They
`
`don't exist in the Petition.
`
` In fact, you know, when Petitioners
`
`even tried to respond to our citation of lines
`
`and numbers, as to where it possibly could have
`
`been, they don't fight to the grounds of
`
`invalidity. And, those are the grounds of
`
`invalidity that they argued in their Petition,
`
`and that Your Honors --
`
` JUDGE PETRAVICK: All right.
`
` MS. KURCZ: -- did execution on.
`
` JUDGE PETRAVICK: We don't need to
`
`argue the Motion to Strike on this phone call.
`
` MS. KURCZ: Okay, Your Honor.
`
` JUDGE PETRAVICK: We're just
`
`deciding whether to authorize the Motion to
`
`Strike. So, we're not going to decide the
`
`substance. We're not going to hear the
`
`substance of the issue right now.
`
` MS. KURCZ: Okay. Understood, Your
`
`Honor. This last closing remark is that, you
`
`know, if there isn't a ruling on the Motion to
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 28
`
`Strike, then, we would request, as I said, a
`
`brief of sixty-five hundred words, an expert
`
`Declaration, a response date within twenty-one
`
`days, and Petitioner's, well, strike that.
`
`And, then --
`
` JUDGE PETRAVICK: Well, that point
`
`is sort of premature. It's premature.
`
` MS. KURCZ: Okay.
`
` JUDGE PETRAVICK: And, you would
`
`have to establish good cause for that. It's
`
`not, we're not doing an either or situation
`
`here. When you request a motion, you need to
`
`present a factual basis for good cause.
`
` So, we're going to decide these two
`
`issues, at this point in time. I believe, if
`
`we don't decide that your Motion to Strike is
`
`authorized, I'm not really sure we can
`
`establish good cause for extra briefing.
`
` That being said, we're going to
`
`take these issues under advisement. And, then,
`
`we'll issue you an Order in due course on these
`
`topics.
`
` Are there any other issues that the
`
`parties want to discuss today?
`
` MR. SOKOHL: No, Your Honor.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`

`
`Page 29
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

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.

throbber

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.

Become a Member

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

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket