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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`IBG LLC and INTERACTIVE BROKERS LLC,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`_____________
`
`Case CBM2016-00009
`Patent 7,685,055 B2
`
`
`PETITIONERS’ OPPOSITION TO
`PATENT OWNER’S MOTION TO EXCLUDE
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`
`
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`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313–1450
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`TABLE OF CONTENTS
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`Petitioners’ Opposition
`CBM2016-00009
`
`I.
`
`INTRODUCTION ............................................................................................... 1
`
`II. THE BOARD SHOULD DENY TT’S UNAUTHORIZED MOTION TO
`STRIKE PETITIONER’S REPLY. .................................................................... 2
`
`A.
`
`B.
`
`TT’s Motion to Exclude is improper because it includes an
`unauthorized Motion to Strike Petitioners’ Reply. ............................... 2
`
`Petitioners’ Reply and Mr. Rho’s Reply Declaration do not include
`new arguments and are responsive to TT’s POR. ................................. 4
`
`III. THE BOARD SHOULD DENY TT’S THREE EVIDENTIARY
`OBJECTIONS. .................................................................................................... 6
`
`A.
`
`TSE (Exhibit 1007) has been properly authenticated. .......................... 6
`
`1.
`
`2.
`
`3.
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`TT concedes that the 2005 Kawashima deposition transcript
`is permissible hearsay, mooting its own objection. .................... 6
`
`Admissible evidence shows that Exhibit 1007 is what
`Petitioners purport it to be. .......................................................... 7
`
`TT twice deposed Mr. Kawashima and still has no basis to
`dispute Exhibit 1007’s authenticity. .........................................12
`
`The certified English translation of TSE (Exhibit 1008) is accurate
`and admissible. ....................................................................................14
`
`Dr. Olsen’s testimony (Exhibit 1038) is highly probative and
`admissible. ...........................................................................................14
`
`B.
`
`C.
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`- i -
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`Petitioners’ Opposition
`CBM2016-00009
`
`I.
`
`INTRODUCTION
`
`TT’s Motion to Exclude is improper because it includes an unauthorized mo-
`
`tion to strike Petitioners’ Reply. Despite two requests, the Board has not granted
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`TT authorization to file a motion to strike Petitioners’ Reply. TT is well aware that
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`the PTAB Rules prohibit the filing of unauthorized motions because this Panel
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`admonished TT in related CBMs for the same transgression (i.e., filing unauthor-
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`ized motions). The Board should deny outright at least Section IV(A) of TT’s Mo-
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`tion to Exclude because it is an unauthorized motion to strike. Should the Board
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`consider Section IV(A), Petitioners’ Reply and Mr. Rho’s Reply Declaration do
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`not include new arguments and are responsive to TT’s POR (Paper 32).
`
`TT’s Motion to Exclude also raises three evidentiary objections, each of
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`which should be denied. The first challenges the authenticity of TSE (Exhibit
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`1007). The second alleges that the certified English translation of TSE (Exhibit
`
`1008) is inaccurate. And, the third seeks to exclude testimony from TT’s own de-
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`clarant (Exhibit 1038) that TT finds too prejudicial for the Board to hear.
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`None of TT’s objections have merit. First, TSE has been properly authenti-
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`cated. Unequivocal and reliable evidence supports the finding that TSE is what it
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`purports to be: a 1998 publication issued by the Tokyo Stock Exchange. Atushi
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`Kawashima—the employee of the Tokyo Stock Exchange who actually prepared
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`the document—has twice been deposed by TT and has twice authenticated TSE.
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`Petitioners’ Opposition
`CBM2016-00009
`Indeed, TT concedes that Mr. Kawashima’s 2005 deposition transcript (Exhibit
`
`1011) is permissible hearsay. TT does not point to any evidence suggesting that
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`Exhibit 1007 is not the 1998 TSE publication. And, in any event, Mr. Kawashima
`
`authenticated Exhibit 1007 again during his 2016 deposition. (Exhibit 2163).
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`Second, TT asserts that the certified English translation of TSE (Exhibit
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`1008) is inaccurate because it does not include two notes from TT’s translator, Mr.
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`Abilock. But Exhibit 1008 is not inaccurate: Mr. Cohen twice certified the accura-
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`cy of the translation. (Exhibits 1009 and 1044.) And, Mr. Abilock is not an objec-
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`tive translator; he’s an advocate for TT. (See Exhibits 2334 and 2339.)
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`Third, TT’s efforts to exclude the cross-examination testimony of its own
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`declarant should be rejected. TT’s expert admitted that the ’055 claims permit con-
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`tinuous movement. This admission is highly relevant to whether TT’s patent
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`claims are obvious. Accordingly, the Board should deny TT’s Motion to Exclude.
`
`II. THE BOARD SHOULD DENY TT’S UNAUTHORIZED MOTION TO
`STRIKE PETITIONER’S REPLY.
`A. TT’s Motion to Exclude is improper because it includes an unau-
`thorized Motion to Strike Petitioners’ Reply.
`
`TT’s Motion to Exclude is improper because it includes an unauthorized mo-
`
`tion to strike Petitioners’ Reply. TT has twice sought authorization to file a motion
`
`to strike Petitioners’ Reply. The Board has not granted either request. The Rules
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`prohibit the filing of unauthorized motions. 37 C.F.R. § 42.20.
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`Petitioners’ Opposition
`CBM2016-00009
`TT first sought authorization to file a motion to strike Petitioners’ Reply on
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`November 14, 2016. (Exhibit 1041.) In response, the Board authorized TT “to file
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`a listing identifying the portions of the Petitioner’s Reply that allegedly raise new
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`arguments for the first time,” but did not authorize TT to file a motion to strike.
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`(Exhibit 1042.) TT renewed its request on December 12, 2016. (Exhibit 1043.) In
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`response, the Board conducted a conference call with the parties on December 14,
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`2016, and took TT’s request under advisement but again did not authorize the re-
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`quested motion to strike. (Exhibit 2343 at 28:9-24.)
`
`TT is well aware that filing unauthorized motions is prohibited. In related
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`CBMs, the Board admonished TT “that our Rules prohibit the filing of motions
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`without Board authorization and prohibit combining motions with other papers.”
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`IBG LLC v. Trading Tech’s Int’l, Inc., CBM2015-00182, Paper 65 at 2 (P.T.A.B.
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`Jun. 30, 2016). In those CBMs, the Board required TT’s lead counsel to certify she
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`would follow the Rules and refrain from filing unauthorized motions. Id. at 3. TT’s
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`counsel certified that she would oblige. See CBM2015-00182, Paper 68.
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`Nevertheless—without prior authorization and despite the Rules, the Board’s
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`prior admonishment, and TT’s prior certification—TT’s Motion to Exclude in-
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`cludes an unauthorized motion to strike. Section IV(A) of TT’s Motion to Exclude
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`requests that portions of Petitioners’ Reply are excluded (Motion at 6-10), which is
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`a poorly-disguised and unauthorized motion to strike, which should be denied.
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`Petitioners’ Opposition
`CBM2016-00009
`Petitioners’ Reply and Mr. Rho’s Reply Declaration do not in-
`clude new arguments and are responsive to TT’s POR.
`
`B.
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`Petitioners’ Reply and Mr. Rho’s Reply Declaration (Exhibit 1035) (“Rho
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`Dec. II”) do not include new arguments and are directly responsive to arguments
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`TT advanced in its POR. This Opposition focuses on the Rho Dec. II because the
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`Board has not authorized briefing regarding alleged new arguments in Petitioners’
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`Reply. But, should the Board entertain TT’s challenge to Petitioners’ Reply, the
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`discussion below regarding the Rho Dec. II applies equally to Petitioners’ Reply.
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`TT asserts that the Rho Dec. II advances two new arguments: one directed to
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`TSE’s compressed, scrolling mode; the other directed to transitioning TSE’s non-
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`compressed, Boardx4 display to a non-compressed, Boardx2 display. (Motion at 6-
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`10.) Neither argument is new; both arguments are fully-supported by the Petition
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`and Exhibit 1004 (“Rho Dec. I”). And, both arguments properly respond to TT’s
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`POR arguments. 37 C.F.R. § 42.23(b).
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`The Petition and the Rho Dec. I support paragraphs 20-21 of the Rho Dec. II
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`(discussion of compressed, scrolling). First, the Petition and the Rho Dec. I are un-
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`equivocal that TSE’s price axis is static in scrolling mode regardless of whether the
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`price display is compressed or uncompressed. (Petition at 35-40, 43, 46, 50, 54;
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`Rho Dec. I at ¶¶ 28-36, 46.) Second, the Rho. Dec. II relies on the same pages and
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`figure of TSE (i.e., pages 0068, 0110, 0115-16; figure on 0068) that are discussed
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`at-length in the Petition and the Rho Dec. I. (Compare Rho Dec. II at ¶¶ 20-21,
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`Petitioners’ Opposition
`CBM2016-00009
`with, Rho Dec. I at ¶¶ 28-36, 42, with Petition at 35-40, 42-43, 47-48). Third, Mr.
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`Rho’s testimony is also responsive to TT’s arguments. TT’s counsel asked Mr.
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`Rho whether TSE’s compressed display can enter scrolling mode. (Exhibit 2331 at
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`27:18-20.) Mr. Rho testified that it can. (Id. at 26:11-28:10.)
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`The Petition and the Rho Dec. I also support paragraphs 22-25 of the Rho
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`Dec. II (discussing the Boardx4 to Boardx2 transition). For example, Mr. Rho tes-
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`tified that TSE discloses “many display options and modes,” allowing its GUI dis-
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`play to be customized by a user based on the user’s preferences. (Rho Dec. I at ¶
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`30; see also Petition at 35.) He further testified that an uncompressed, Boardx2
`
`displays twenty prices and an uncompressed, Boardx4 displays seven prices. (Rho
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`Dec. I at ¶ 31; see also Petition at 36-37.) Additionally, paragraphs 22-25 of the
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`Rho Dec. II respond to the impermissibly narrow claim constructions in TT’s POR,
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`which rely on figures not found in the ’055 patent. (See Rho Dec. II at ¶ 22.)
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`TT also attempts to hide from the highly-relevant “overview of TSE” that is
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`provided in the Petition and the Rho Dec. I, alleging that it is not “Petitioners’ ac-
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`tual grounds for invalidity.” (Motion at 8.) This argument has no merit. Petitioners’
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`obviousness grounds begin on page 34 of the Petition (Section IV). The “overview
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`of TSE” on pages 35-40 analyzes the scope and content of the prior art, which is
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`the first factor in an obviousness determination. Graham v. John Deere Co. of
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`Petitioners’ Opposition
`CBM2016-00009
`Kansas City, 383 U.S. 1, 17 (1966). TT cannot stick its head in the sand and ignore
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`portions of the Petition that are not favorable to its positions.
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`Finally, Petitioners are entitled to notice and the opportunity to respond to
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`TT’s impermissibly narrow claim constructions and arguments. SAS Inst., Inc. v.
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`ComplementSoft, LLC, 825 F.3d 1341, 1351-52 (Fed. Cir. 2016); see also Genzyme
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`Therapeutic Prods. L.P. v. Biomarin Pharm. Inc., 825 F.3d 1360, 1367 (Fed. Cir.
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`2016) (“The purpose of the trial . . . is to give the parties an opportunity to build a
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`record by introducing evidence—not simply to weigh evidence of which the Board
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`is already aware.”). Petitioners’ did not have notice of TT’s positions until TT filed
`
`its POR. On the other hand, TT was on notice of Petitioners’ positions that TSE
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`teaches that the price axis is static in scrolling mode and that TSE teaches “cus-
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`tomiz[ing] the Board Screen based on how [traders] preferred to view the market
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`information while they actively trade.” (Petition at 35, 38.) See In re Nuvasive,
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`Inc., Appeal Nos. 2015-1672, 2015-1673, Slip Op. at 10-11 (Fed. Cir. Nov. 9,
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`2016) (finding a single citation in a petition provided notice to patent owner).
`
`III. THE BOARD SHOULD DENY TT’S THREE EVIDENTIARY OB-
`JECTIONS.
`A. TSE (Exhibit 1007) has been properly authenticated.
`TT concedes that the 2005 Kawashima deposition transcript
`1.
`is permissible hearsay, mooting its own objection.
`
`TT does not seek to exclude the 2005 Kawashima deposition transcript (Ex-
`
`hibit 1011). Instead, TT asserts that Petitioners failed to authenticate TSE (Exhibit
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`Petitioners’ Opposition
`CBM2016-00009
`1007) because the 2005 Kawashima deposition transcript (which authenticates
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`TSE) is allegedly hearsay. (Motion at 2-6.) Yet TT undermines its alleged “doubts”
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`about TSE’s authenticity by failing to move to exclude Exhibit 1011 and by con-
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`ceding Exhibit 1011’s admissibility. (Id. at 3-4.)
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`TT takes this position hoping to receive favorable treatment of its own tes-
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`timonial evidence from the related district court litigations. To this end, TT asserts
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`that its evidence from district court litigation and the 2005 Kawashima deposition
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`transcript “Rises and Falls” together. (Id. at 3.) But TT’s bizarre attempt to horse
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`trade on evidentiary issues in its motion is improper. The Office’s regulations place
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`the burden of proof in any motion on the movant, including in motions to exclude.
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`37 C.F.R. § 42.20(c). By conceding that Exhibit 1011 is permissible hearsay, TT
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`quashes its own evidentiary objection. As such, its motion fails.
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`2.
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`Admissible evidence shows that Exhibit 1007 is what Peti-
`tioners purport it to be.
`
`Petitioners produced unequivocal and unrebutted evidence showing that Ex-
`
`hibit 1007 is the 1998 TSE publication. This evidence meets the requirement for
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`authentication under each of Fed. R. Evid. 901, 902(11), and 901(b)(4).
`
`The certified English translation bears the name of the “Tokyo Stock Ex-
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`change Operation System Division” and the date “August, 1998.” (Exhibit 1008 at
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`5, 337.) Mr. Kawashima’s 2005 deposition provides further supporting evidence of
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`authenticity. (Exhibit 1011.) Mr. Kawashima’s testimony: (1) establishes that Ex-
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`Petitioners’ Opposition
`CBM2016-00009
`hibit 1007 was “the current futures options trading system -- trade manual” (com-
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`pare Exhibit 1007 at 1 (marked “DX 179” with bates numbering “TSE 647-981),
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`with, Exhibit 1011 at 9:19-10:9); (2) confirmed that the document was prepared
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`and disseminated in 1998 by the Tokyo Stock Exchange (Exhibit 1011, 10:19-24,
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`12:22-24); (3) that Mr. Kawashima had personal knowledge of that, as he “was in
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`charge of preparing this document” (id. at 11:1-3); (4) that he prepared Exhibit
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`1007 in the ordinary course of business, as a regular practice of the Tokyo Stock
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`Exchange (id. at 11:4-14); and (5) that Exhibit 1007 was maintained thereafter at
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`the Tokyo Stock Exchange in the ordinary course of business (id. at 11:15-24).
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`Petitioners also served supplemental evidence providing additional support
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`that Exhibit 1007 is what it purports to be. Petitioners presented evidence that a
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`party offered the same document as Exhibit 179 in a related district court action,
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`Trading Technologies International, Inc. v. eSpeed, Case No. 04-cv- 5312. (Exhib-
`
`it 1007, marked “DX 179” bates “TSE 647-981”.) Further, TT submitted this same,
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`bates-stamped version of TSE to the Patent Office during prosecution of the U.S.
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`Patent No. 8,185,467 patent in an IDS. (Exhibit 1045 at ¶ 1.) Thus, there is no
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`question that Exhibit 1007 is the 1998 TSE publication referred to in the deposi-
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`tion. Furthermore, independent of Kawashima’s 2005 deposition testimony (Exhib-
`
`it 1011), Petitioner authenticated TSE during Mr. Kawashima’s 2016 deposition.
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`(Exhibit 2163 at 45:7-47:21.)
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`Petitioners’ Opposition
`CBM2016-00009
`a) Exhibit 1007 has been authenticated under Fed. R. Evid. 901.
`Petitioners have offered evidence that is more than sufficient to support a
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`finding that Exhibit 1007 is what Petitioners claim it is. Fed. R. Evid. 901. And
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`Fed. R. Evid. 901(b)(1) provides that “a proponent may authenticate evidence
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`through testimony.” See, e.g., SAP Am., Inc. v. Arunachalam, IPR2013-00195, Pa-
`
`per 60 at 22 (P.T.A.B. Sep. 18, 2014). Mr. Kawashima “was in charge of preparing
`
`the document.” (Exhibit 1011 at 11:3.) He is, and was, competent to identify it for
`
`purposes of authentication. Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir.
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`1980) (“Any person in a position to attest to the authenticity of certain records is
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`competent to lay the foundation for the admissibility of the records ….”).
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`TT’s criticism of the way Mr. Kawashima verified his identification of TSE
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`(based on his personal knowledge about how it was prepared) does not cut against
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`authenticity in a way supported by law. (Motion at 4-5.) Indeed, TT does not cite
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`any legal authority in support of the standard it asks the Board to impose on Mr.
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`Kawashima. Nor does the law require a witness to specify precisely how they
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`would go about confirming their identification of a document, given that a witness
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`need not attest to its complete accuracy. See Rosenberg, 624 F.2d at 665.
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`b) Exhibit 1007 is self-authenticated under Fed. R. Evid. 902(11).
`Additionally, Exhibit 1007 is self-authenticated under Fed. R. Evid. 902(11)
`
`because it comes from the business records of the Tokyo Stock Exchange. Mr.
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`Petitioners’ Opposition
`CBM2016-00009
`Kawashima’s testimony establishes that preparation and maintenance of manuals,
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`such as Exhibit 1007, was a regularly conducted activity by the Tokyo Stock Ex-
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`change. (See, e.g., Exhibit 1011, 11:4-24.) Mr. Kawashima was an employee with
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`the requisite knowledge during the relevant timeframe to establish this. (Id. at
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`5:15-21.) Manuals prepared in the ordinary course of business “fall under the busi-
`
`ness record exception” and “meet the authentication standard.” Dataquill Ltd. v.
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`Handspring, Inc., 2002 WL 31870560 at *3 (N.D. Ill. Dec. 23, 2002).
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`Mr. Kawashima’s testimony stands unrebutted that Exhibit 1007 was pre-
`
`pared and maintained as a regularly conducted activity in the ordinary course of
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`business. (Exhibit 1011, 11:4-24). Fed. R. Evid. 803(6)(B)-(D). When Mr. Ka-
`
`washima testified in 2005 as to its authenticity, Exhibit 1007 was only seven years
`
`old. (Exhibit 1011, 10:19-24.) Fed. R. Evid. 803(6)(A). TT has not shown, nor can
`
`it, that “the source of information or the method or circumstances of preparation
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`indicate any lack of trustworthiness.” Fed. R. Evid. 803(6)(E). TT’s suggestion that
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`Mr. Kawashima’s testimony is conclusory does not establish untrustworthiness.
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`(Motion at 4-5.) And TT’s allegation that Mr. Kawashima is biased is merely self-
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`serving speculation. (Id. at 5.) (See infra Section III(A)(3).) Accordingly, all of the
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`requirements for authenticating Exhibit 1007 as a record of regularly conducted ac-
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`tivity are satisfied. Fed. R. Evid. 902(11).
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`c) Exhibit 1007 is authenticated under Fed. R. Evid. 901(b)(4).
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`Petitioners’ Opposition
`CBM2016-00009
`And, although not necessary, Exhibit 1007 is authenticated under Fed. R.
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`Evid. 901(b)(4) which provides that “appearance, contents, substance, internal pat-
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`terns, or other distinctive characteristics of the item, taken together with all the cir-
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`cumstances” is sufficient to satisfy the Fed. R. Evid. 901(a). Exhibit 1007 shows a
`
`distinctive layout with a large number of unique illustrations. Exhibit 1007 also in-
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`cludes the bates numbering applied in connection with the related district court ac-
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`tion. (Exhibit 1007, marked “DX 179” with bates numbers “TSE 647-981,” and
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`page numbering “1-1,” etc.) This branding is distinctive and confirms the authen-
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`ticity of Exhibit 1007. A distinctive circumstance here also includes that Mr. Ka-
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`washima made himself available for cross-examination in 2016 at the behest of TT.
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`(See infra Section III(A)(3).) In view of this, Petitioner has laid a sufficient founda-
`
`tion to establish that Exhibit 1007 is authentic under Fed. R. Evid. 901(b)(4). See,
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`e.g., Ericsson Inc. v. Intellectual Ventures I LLC, IPR2014-00527, Paper 41 at 12
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`(P.T.A.B. May 18, 2015) (finding papers with sequential pages authenticated).
`
`Accordingly, because Petitioner properly authenticated TSE in numerous
`
`ways, and TT offers no evidence suggesting TSE is not what Petitioners purport it
`
`is, TT’s request to exclude Exhibit 1007 should be denied. And even if TT had
`
`raised legitimate questions, which TT has not, “[a]ny doubts. . . [go] to the weight
`
`and not the admissibility of the [evidence].” United States v. Albert, 595 F.2d 283,
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`290 (5th Cir.1979), cert. denied, 444 U.S. 963 (1979).
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`Petitioners’ Opposition
`CBM2016-00009
`TT twice deposed Mr. Kawashima and still has no basis to
`dispute Exhibit 1007’s authenticity.
`
`3.
`
`Mr. Kawashima made himself available in this proceeding to TT for cross-
`
`examination in 2016, to answer questions about TSE and his alleged bias. This re-
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`solves any hearsay concern with respect to Exhibit 1011. (Exhibit 1061 at 9-10.)
`
`Thus, Exhibit 1011 is not untrustworthy and any hearsay objection has been cured.
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`TT first deposed Mr. Kawashima in 2005, resulting in the transcript offered
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`as Exhibit 1011, which authenticates TSE. Hoping to resolve TT’s objection and
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`avoid this motion, Petitioner made Mr. Kawashima available for cross-examination
`
`specifically to allow TT to ask questions about TSE. (Exhibits 1047 and 1048; Ex-
`
`hibit 2163, 26:22-27:25.) The second deposition took place on June 17, 2016. (Ex-
`
`hibit 2163.) During this deposition Mr. Kawashima corroborated his prior testimo-
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`ny. (Id. at 45:7-61:2; 43:2-21; 51:6-61:2; see also Exhibits 1049-1060 (deposition
`
`exhibits further corroborating Mr. Kawashima’s testimony).) TT conspicuously
`
`omits this testimony and cites virtually nothing from the 2016 Kawashima deposi-
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`tion transcript in its motion. Having failed to support a challenge to the veracity or
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`reliability of Mr. Kawashima’s authentication, despite the opportunity to do so, TT
`
`has no reasonable basis to question authenticity. TT continues to accuse Mr. Ka-
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`washima of being biased merely because he is employed by the Tokyo Stock Ex-
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`change. (Motion at 5.) This is unsubstantiated. Despite being given a full and fair
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`opportunity to cross-examine him extensively on his prior testimony and credibil-
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`Petitioners’ Opposition
`CBM2016-00009
`ity, TT has repeatedly failed to discredit Mr. Kawashima or show that he is biased.
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`The fact is that Mr. Kawashima personally prepared TSE years before the Tokyo
`
`Stock exchange challenged TT’s Japanese patent. (Exhibit 2163, 46:12-47:1.) Mr.
`
`Kawashima testified that he was not involved in the challenge to the Japanese pa-
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`tent. (Id. at 32:9-13.) And, TT’s evidentiary objections are improper; any alleged
`
`bias goes to weight, not admissibility. Polaris Wireless, Inc. v. Trueposition, Inc.,
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`IPR2013-00323, Paper 62 at 39, 42 (P.T.A.B. Nov. 3, 2014).
`
`TT also insinuates that counsel for Petitioner told Mr. Kawashima what to
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`say during his 2016 deposition. (Motion at 5.) This accusation is baseless and con-
`
`tradicted by what Mr. Kawashima actually testified. (Exhibit 2163, 15:16-23.) In
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`sum, despite having two full and fair opportunities to cross-examine Mr. Ka-
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`washima about TSE, TT still fails to point out any inconsistency or infirmity in his
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`prior testimony. And, the 2005 Kawashima deposition transcript (Exhibit 1011)
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`readily satisfies the residual exception. Fed. R. Evid. 807. Exhibit 1011 is a profes-
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`sionally prepared deposition transcript taken before a notary public pursuant to the
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`Fed. R. Civ. P. (Exhibit 1011 at 1.) There is no dispute that the deposition occurred
`
`when and where it did, and that Exhibit 1011 is a true and correct copy of what
`
`transpired. Mr. Kawashima gave his statement under oath. (Id. at 5:1-4.) As such,
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`Exhibit 1011 “has equivalent circumstantial guarantees of trustworthiness.” Fed. R.
`
`Evid. 807(a)(1). Exhibit 1011 is also more probative than any other evidence Peti-
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`Petitioners’ Opposition
`CBM2016-00009
`tioner can obtain through reasonable efforts because it was taken close in time to
`
`when document was prepared and disseminated. Fed. R. Evid. 807(a)(2), (3). Fi-
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`nally, admitting Exhibit 1011 is in the interests of justice because it will provide as
`
`complete a record as possible regarding TSE. Fed. R. Evid. 807(a)(4).
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`B.
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`The certified English translation of TSE (Exhibit 1008) is accurate
`and admissible.
`
`TT asserts that the English translation of TSE (Exhibit 1008) is inaccurate
`
`because it does not include two notes from TT’s translator, Mr. Abilock. (Motion
`
`at 6.) But Exhibit 1008 is accurate: Mr. Cohen twice attested to the accuracy of the
`
`translation. (Exhibits 1009 and 1044.) And, Mr. Abilock is not an objective transla-
`
`tor. He advocates for TT in this proceeding, providing two declarations to support
`
`TT’s technical arguments. (See Exhibits 2334 and 2339.)
`
`C. Dr. Olsen’s testimony (Exhibit 1038) is highly probative and ad-
`missible.
`
`TT urges the Board to exclude choice portions of Dr. Olsen’s cross-
`
`examination testimony. (Motion at 10-12.) In essence, TT seeks to exclude unfa-
`
`vorable testimony and again uses its Motion to Exclude in an unauthorized man-
`
`ner: as sur-reply to argue the merits of the ’055 claims. (Id.)
`
`Fed. R. Evid. 403 provides that evidence may be excluded if its probative
`
`value is substantially outweighed by the danger of unfair prejudice, confusing the
`
`issues, misleading the fact-finder, undue delay, wasting time, and/or presenting
`
`
`
`- 14 -
`
`
`
`Petitioners’ Opposition
`CBM2016-00009
`needlessly cumulative evidence. Here, the material sought to be excluded consists
`
`of factually true admissions explaining how the claims permit continuous move-
`
`ment (i.e., repositioning). These admissions are highly probative and contrary to
`
`positions TT has taken regarding obviousness. TT has failed to demonstrate even a
`
`remote likelihood that the statements will be misinterpreted or misunderstood.
`
`TT alleges that Dr. Olsen’s disputed cross-examination testimony was out-
`
`side the scope of his direct testimony and elicited by a “vague and confusing”
`
`question. (Motion at 10-12.) Both allegations are untrue. Dr. Olsen’s direct testi-
`
`mony discusses the same limitations of claim 1 on which Petitioners’ counsel
`
`cross-examined Dr. Olsen. (Exhibit 2174 at ¶¶ 27-34.) And, Dr. Olsen testified that
`
`he had read and understood claim 1 of the ’055 patent prior to signing his declara-
`
`tion. (Exhibit 1038 at 9:20-10:4.) Further, during cross-examination, Petitioners’
`
`counsel properly instructed Dr. Olsen to ask for clarification if he did not under-
`
`stand a question. (Id. at 4:10-20.) Dr. Olsen did not request clarification when
`
`asked the allegedly “vague and confusing” question; he answered without hesita-
`
`tion. (Id. at 81:18-82:3.) Indeed, if any line of questioning was “vague and confus-
`
`ing” it was TT’s attempt to rehabilitate Dr. Olsen. TT’s counsel asked Dr. Olsen a
`
`line of questioning about “relative movement.” (Id. at 104:6-105:1.) But on re-
`
`cross, Dr. Olsen admitted the term “relative movement” is not recited in the claims.
`
`(Id. at 114:14-21.) TT’s attempt to erase these truthful responses should be denied.
`
`
`
`- 15 -
`
`
`
`Petitioners’ Opposition
`CBM2016-00009
`
`
`
`
`
`Date: December 20, 2016
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`/Richard M. Bemben/
`
`
`Robert E. Sokohl, Reg. No. 36,013
`Lori A. Gordon, Reg. No. 50,633
`Richard M. Bemben, Reg. No. 68,658
`Attorneys for Petitioners
`
`
`
`
`- 16 -
`
`
`
`Petitioners’ Opposition
`CBM2016-00009
`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that the foregoing PETITIONERS’ OP-
`
`POSITION TO PATENT OWNER’S MOTION TO EXCLUDE and all associ-
`
`ated exhibits were served electronically via e–mail on December 20, 2016, in their
`
`entireties on Attorneys for Patent Owner:
`
`erika.arner@finnegan.com
`Erika H. Arner, Reg. No. 57,540
`joshua.goldberg@finnegan.com
`Joshua L. Goldberg, Reg. No. 59,369
`kevin.rodkey@finnegan.com
`Kevin D. Rodkey, Reg. No. 65,506
`rachel.emsley@finnegan.com
`Rachel L. Emsley, Reg. No. 63,558
`cory.bell@finnegan.com
`Cory C. Bell, Reg. No. 75,096
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`Trading-Tech-CBM@finnegan.com
`
`
`tt-patent-cbm@tradingtechnologies.com
`Steven F. Borsand, Reg. No. 36,752
`jay.knobloch@tradingtechnologies.com
`Jay Q. Knobloch, Reg. No. 57,347
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`
`gannon@mbhb.com
`Michael D. Gannon, Reg. No. 36,807
`sigmond@mbhb.com
`Leif R. Sigmond, Jr., Reg. No. 35,680
`Jennifer M. Kurcz, Reg. No. 54,481
`kurcz@mbhb.com
`Cole B. Richter, Reg. No. 65,398
`richter@mbhb.com
`MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`
`
`
`
`
`
`Date: December 20, 2016
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Richard M. Bemben/
`
`
`Robert E. Sokohl, Reg. No. 36,013
`Attorney for Petitioners
`
`
`
`
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