Paper No. _____
`Filed: December 22, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`IBG LLC, and INTERACTIVE BROKERS LLC, Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`
`
`CBM2016-00009
`Patent No. 7,685,055 B2
`
`
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE UNDER 37 C.F.R. 42.64(c)
`
`
`
`
`Filed: December 22, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`IBG LLC, and INTERACTIVE BROKERS LLC, Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`
`
`CBM2016-00009
`Patent No. 7,685,055 B2
`
`
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE UNDER 37 C.F.R. 42.64(c)
`
`
`
`
`
`CBM2016-00009
`Patent No. 7,685,055
`
`
`TABLE OF CONTENTS
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`I.
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`TT’S MOTION TO EXCLUDE WAS NOT AN
`UNAUTHORIZED MOTION TO STRIKE ................................................... 1
`
`A.
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`B.
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`Petitioners’ Reply Improperly Relies on the Rho Reply
`Declaration to Make New Arguments ................................................... 1
`
`Certain Portions of the Olsen Transcript are Inadmissible
`Under Fed. R. Evid. 611 and Fed. R. Evid. 403 ................................... 3
`
`TSE EXHIBITS 1007, 1008, AND 1011 SHOULD BE
`EXCLUDED AS UNAUTHENTICATED AND/OR
`INADMISSIBLE HEARSAY ......................................................................... 3
`
`II.
`
`
`
`i
`
`
`
`
`I.
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`CBM2016-00009
`Patent No. 7,685,055
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`TT’S MOTION TO EXCLUDE WAS NOT AN UNAUTHORIZED
`MOTION TO STRIKE
`
`TT’s Motion to Exclude is proper because it is not unauthorized Motion to
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`Strike—it seeks to exclude improper evidence on which the Reply improperly
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`relies. Petitioners cite no case law supporting their argument to the contrary.
`
`Petitioners attempt to distract the Board from the new arguments raised in
`
`the Rho Reply Declaration by arguing TT has ignored 37 C.F.R. § 42.20(b).
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`However, TT’s authorization request is irrelevant to TT’s Motion to Exclude.
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`Indeed, Petitioners do not dispute TT’s argument that ¶¶ 20-25 of Exhibit 1035
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`(“Rho Dec. II”) are inadmissible under FRE 401 and 402 because these paragraphs
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`are irrelevant to the grounds of invalidity instituted by the Board. Petitioners also
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`do not address TT’s argument that ¶¶ 20-25 of Rho Dec. II are inadmissible under
`
`FRE 403 because the prejudice to TT far outweighs the probative value.
`
`
`
`A.
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`Petitioners’ Reply Improperly Relies on the Rho Reply
`Declaration to Make New Arguments
`
`The Board should exclude portions of Rho Dec. II that relate to new
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`arguments made in the Reply. Id. at ¶¶ 20-25. Petitioners argue that the Petition
`
`and Exhibit 1004 (“Rho Dec. I”): (1) “are unequivocal” that TSE’s price axis is
`
`static in compressed scrolling mode and (2) support the claimed “adjusting” step
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`when transitioning from the non-compressed board x4 mode to the non-
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`compressed board x2 mode. Paper 55, at 4-5. Petitioners are wrong.
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`1
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`
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`For example, Petitioners’ cites merely state that “TSE’s price axis is ‘static’
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`CBM2016-00009
`Patent No. 7,685,055
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`
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`when the display is in certain modes…[for] example, ‘the price display positions
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`do not change automatically’ when the Board Screen is in the Scrolling Screen
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`mode.” Pet. at 43. The Petition states “TSE can be shifted to scrolling mode (static
`
`axis) by scrolling and shifted back to basic mode (which allows the axis to move)
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`by clicking the Home button.” Id. at 50. But this does not support that TSE
`
`discloses that the user is able to enter scrolling screen mode in the compressed
`
`price display mode. Indeed, every example of scrolling screen mode in TSE is in
`
`the uncompressed mode. See, e.g., Ex. 1008 at 116.
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`But more appropriately, these citations do not demonstrate that the Petition
`
`argued that this was possible. As such, TT has had no opportunity to put in
`
`evidence rebutting the allegation that TSE describes this mode and/or evidence that
`
`this mode does not meet the static limitation. Accordingly, this evidence should be
`
`excluded pursuant to at least 37 C.F.R. § 42.23(b) and 5 U.S.C. § 554(b)(3), as
`
`well as under FRE 403 given the prejudice to TT not being permitted to respond.
`
`Further, the Petition and Rho Dec. I also do not support the claimed
`
`“adjusting” step when transitioning from the non-compressed board x4 mode to the
`
`non-compressed board x2 mode. The portions of the Petition and Rho Dec. I cited
`
`by petitioners merely describe “TSE [supporting] many display options and
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`modes” including the board x2 mode and board x4 mode. Rho Dec. I. at ¶¶ 30-31.
`
`2
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`
`
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`This does not describe the claimed “adjusting” step nor establish that Petitioners
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`CBM2016-00009
`Patent No. 7,685,055
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`argued that this amounted to the “adjusting” step. Thus, the Board should exclude
`
`¶¶ 20-25 of Rho Dec. II because they raise new arguments.
`
`B. Certain Portions of the Olsen Transcript are Inadmissible Under
`Fed. R. Evid. 611 and Fed. R. Evid. 403
`
`The quoted testimony from Dr. Olsen should be excluded as vague,
`
`confusing, and exceeding the scope of direct testimony in violation of FRE 403
`
`and 611. Whether a witness responds to improper questioning does not alter the
`
`propriety of the questioning, and Petitioners cite no caselaw to the contrary.
`
`II. TSE EXHIBITS 1007, 1008, AND 1011 SHOULD BE EXCLUDED AS
`UNAUTHENTICATED AND/OR INADMISSIBLE HEARSAY
`
`TT’s evidence from district court litigation and the 2005 Kawashima
`
`deposition transcript should stand or fall together based on mutual hearsay
`
`objections. Paper 59 at 4. The Board must treat TT’s district court evidence and the
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`2005 Kawashima transcript in the same way because they differ only in that TT
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`exerted greater efforts to obtain better evidence than Petitioners. To the extent this
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`difference impacts the admissibility of the evidence, it favors admitting TT’s
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`evidence, not the 2005 Kawashima transcript.
`
`Qualification for the residual exception to hearsay requires that evidence be
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`more probative on the point for which it is offered than any other evidence that the
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`proponent can obtain through reasonable efforts. FRE 807. While TT exerted
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`3
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`
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`significant efforts to obtain better evidence, Petitioners did not. Petitioners argue
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`CBM2016-00009
`Patent No. 7,685,055
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`that Mr. Kawashima’s cross-examination in this proceeding resolves any hearsay
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`concern. This does not distinguish the Kawashima 2005 deposition transcript from
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`TT’s evidence from district court. Petitioners could have deposed these witnesses,
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`but simply chose not to do so.
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`In Apple Inc. v. VirnetX Inc., the Board noted that the party challenging the
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`evidence “chose not to seek the opportunity to cross examine the declaration
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`testimony,” (including district court trial and deposition testimony), before
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`explaining why the residual exception of FRE 807 nevertheless rendered
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`everything admissible. IPR2015-00811, Paper 44 at 68-70 (Sep. 8, 2016). The
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`Board recognized that whether a party cross-examines a witness in the proceeding
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`is irrelevant to whether other testimony not from the proceeding is hearsay. See id.
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`Given that there are no differences (between the Kawashima and TT’s
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`district court evidence) that favor admitting Kawashima but not TT’s district court
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`evidence, Petitioners have not met their burden to exclude TT’s evidence without
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`also excluding Kawashima. Thus, the evidence rises or falls together.
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`Moreover, no evidence establishes that Exhibit 1007 (“TSE”) is the specific
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`document that Petitioners assert was “a 1998 publication issued by the Tokyo
`
`Stock Exchange” and not some other TSE document. See Paper 55 at 1. Indeed, the
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`2005 Kawashima transcript raises more doubt than it resolves. Paper 59 at 4. Citing
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`4
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`
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`Rosenberg v. Collins, Petitioners argue that TT’s criticism of the way Mr.
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`CBM2016-00009
`Patent No. 7,685,055
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`Kawashima verified his identification of the TSE manual does not cut against
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`authenticity. See 624 F.2d 659, 665 (5th Cir.1980); Paper 55 at 9. But Rosenberg
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`relates to the business record exception of FRE 803(6), not to whether the
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`document is the particular document alleged. It has no bearing on whether Mr.
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`Kawashima ever authenticated the document allegedly issued by the TSE in 1998.
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`Regardless of whether TSE is a business record or appears to be an authentic
`
`TSE document, nothing – including Mr. Kawashima’s testimony – establishes that
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`it is the document allegedly “issued by the Tokyo Stock Exchange.” Accordingly,
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`it is not self-authenticating in any way that can establish it as prior art.
`
`The 2016 transcript does not resolve the deficiencies of the 2005 deposition.
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`Instead, it suggests that Mr. Kawashima could not have examined the document in
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`a way that would have differentiated it from any other version. Ex. 2163 at 45-46.
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`Thus, the 2016 transcript also proves Mr. Kawashima’s bias. Paper 59 at 8. This
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`bias establishes that his testimony should be given no weight. As such, TSE is
`
`unauthenticated.
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`
`
`Dated: December 22, 2016
`
`By:
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`
`
`5
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`
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`
`
`
`
`/Jennifer M. Kurcz/
`Jennifer M. Kurcz,
`Back-Up Counsel
`Reg. No 54,481
`
`
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`
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`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that a copy of the foregoing PATENT
`
`CBM2016-00009
`Patent No. 7,685,055
`
`OWNER’S REPLY IN SUPPORT OF ITS MOTION TO EXCLUDE UNDER
`
`37 C.F.R. 42.64(C) was served on December 22, 2016, via email directed to
`
`counsel of record for the Petitioners at the following:
`
`
`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori A. Gordon
`lgordon-PTAB@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`PTAB@skgf.com
`
`
`
`
`
`
`/Cole B. Richter/
`Cole B. Richter, Back-Up Counsel
`Reg. No. 65,398
`
`Dated: December 22, 2016
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`
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`
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`By:
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`6
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