Paper No. ______
`Filed: March 29, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`IBG LLC;
`INTERACTIVE BROKERS LLC;
`TRADESTATION GROUP, INC.; and
`TRADESTATION SECURITIES, INC.,
`
`Petitioners,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner.
`
`
`
`CBM2016-00032
`U.S. Patent 7,212,999
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE
`UNDER 37 C.F.R. § 42.64(c)
`
`
`
`
`
`
`Filed: March 29, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`IBG LLC;
`INTERACTIVE BROKERS LLC;
`TRADESTATION GROUP, INC.; and
`TRADESTATION SECURITIES, INC.,
`
`Petitioners,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner.
`
`
`
`CBM2016-00032
`U.S. Patent 7,212,999
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE
`UNDER 37 C.F.R. § 42.64(c)
`
`
`
`
`
`
`
`CBM2016-00032
`U.S. Patent 7,212,999
`
`
`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION ........................................................................................... 1
`
`II.
`
`STANDARD .................................................................................................... 1
`
`III. CERTAIN PORTIONS OF THOMAS’ TESTIMONY
`SHOULD BE EXCLUDED ............................................................................ 1
`
`A.
`
`TT Timely Objected .............................................................................. 1
`
`B.
`
`C.
`
`Petitioners Rely on This Evidence in Their Reply ................................ 1
`
`The Probative Value of the Cited Testimony is
`Outweighed By Prejudice and Confusion ............................................. 2
`
`IV. CONCLUSION ................................................................................................ 8
`
`
`
`
`
`i
`
`
`
`CBM2016-00032
`U.S. Patent 7,212,999
`
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`I.
`
`INTRODUCTION
`
`Pursuant to 37 C.F.R. §§ 42.64(c) and 42.61(a) and the Federal Rules of
`
`Evidence, Patent Owner Trading Technologies International, Inc. (“TT”)
`
`respectfully moves to exclude certain deposition testimony of Christopher Thomas
`
`(Ex. 1047) under FRE 403 because those portions’ probative value is substantially
`
`outweighed by a danger of unfair prejudice and confusing the issues as a result of
`
`vague questioning.
`
`II.
`
`STANDARD
`
`A Motion to Exclude must (a) identify where in the record the objection was
`
`made, (b) identify where in the record the evidence sought to be excluded was
`
`relied upon by an opponent, (c) address objections to exhibits in numerical order,
`
`and (d) explain the objection. Office Patent Trial Practice Guide, 77 Fed. Reg.
`
`48,756, 48,767 (Aug. 14, 2012).
`
`III. CERTAIN PORTIONS OF THOMAS’ TESTIMONY SHOULD BE
`EXCLUDED
`
`A. TT Timely Objected
`
`TT timely objected to the relevant testimony during the deposition. Ex.
`
`1047 at 248, 263-269.
`
`B.
`
`Petitioners Rely on This Evidence in Their Reply
`
`Petitioners rely upon pages 248 and 263-269 of the Thomas deposition
`
`transcript (Ex. 1047) in their Reply at page 7. Paper 29 at 7.
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`1
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`CBM2016-00032
`U.S. Patent 7,212,999
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`C. The Probative Value of the Cited Testimony is Outweighed By
`Prejudice and Confusion
`
`The answers at page 248 and 263-269 in Exhibit 1047 were in response to
`
`vague and ambiguous questions yielding irrelevant testimony that Petitioners are
`
`using in a confusing and misleading manner to imply that the claimed inventions
`
`do not improve computers.
`
`9 Q. So I'm going to ask my question again.
`
`10 Does the GUI in Claim 1 in any way improve the
`
`11 speed of the computer?
`
`12 MR. GANNON: Object to the form.
`
`13 BY MR. SOKOHL:
`
`14 Q. And you said that's not how it
`
`15 improves the function of the computer.
`
`16 A. Correct.
`
`17 Q. Okay. Does it improve the efficiency?
`
`18 Does the GUI tool of Claim 1 improve the
`
`19 efficiency of the computer in any way?
`
`20 MR. GANNON: Object to the form.
`
`21 THE WITNESS: The GUI from Claim 1
`
`22 improvements the functionality of the computer by
`
`2
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`CBM2016-00032
`U.S. Patent 7,212,999
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`1 specifically the combination of the elements of
`
`2 the claim.
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`* * *
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`5 Q. Okay. You can read it but at the end
`
`6 of the day I'm asking you whether or not those
`
`7 elements as recited in Claim 1 processed the data
`
`8 faster than a Figure 2 type GUI?
`
`9 MR. GANNON: Object to the form.
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`10 BY MR. SOKOHL:
`
`11 Q. If you don't know, you don't know. I
`
`12 mean I don't know how to rephrase that question.
`
`13 A. Okay. This has got nothing to do with
`
`14 the patent or the claim?
`
`15 Q. It does have to do with the patent.
`
`16 Does Claim 1 recite a GUI? What
`
`17 does Claim 1 recite? If you're going to just
`
`18 repeat the claim, that's fine. But do you have a
`
`19 generalization for what Claim 1 recites?
`
`20 A. A GUI tool.
`
`21 Q. Okay. Does the GUI tool of Claim 1
`
`3
`
`
`
`22 cause the recited computer from Claim 1 to process
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`CBM2016-00032
`U.S. Patent 7,212,999
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`1 data faster than a Figure 2 type GUI tool?
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`2 MR. GANNON: Object to the form,
`
`3 scope.
`
`4 THE WITNESS: This isn't about
`
`5 processing data. There's nothing claiming
`
`6 processing data.
`
`7 BY MR. SOKOHL:
`
`8 Q. Okay. Does it make the computer more
`
`9 efficient?
`
`10 A. There's nothing claiming to make the
`
`11 computer -- well, first of all, you have to define
`
`12 what making the computer more efficient is.
`
`13 Q. Well, does it make it more
`
`14 efficient -- does it make the computer more
`
`15 efficient in any way?
`
`16 MR. GANNON: Object to the form.
`
`17 BY MR. SOKOHL:
`
`18 Q. Does the GUI tool of Claim 1 make the
`
`19 computer more efficient in any way?
`
`4
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`CBM2016-00032
`U.S. Patent 7,212,999
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`20 MR. GANNON: Object to the form.
`
`21 THE WITNESS: The elements of Claim 1
`
`22 do not relate to making the computer more
`
`1 efficient. That's not what is described in all of
`
`2 the elements of Claim 1.
`
`3 BY MR. SOKOHL:
`
`4 Q. Does the GUI tool of Claim 1 make the
`
`5 computer more reliable?
`
`6 MR. GANNON: Object to the form.
`
`7 THE WITNESS: Again, my answer is
`
`8 going to be similar.
`
`9 The elements of Claim 1 have
`
`10 nothing to do with making a computer more
`
`11 reliable. The elements of Claim 1 claim a new
`
`12 type of GUI tool that has previously not been
`
`13 described.
`
`14 BY MR. SOKOHL:
`
`15 Q. Okay. Does the computer in Claim 1
`
`16 include a memory, if you know?
`
`17 MR. GANNON: Object to the form,
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`5
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`CBM2016-00032
`U.S. Patent 7,212,999
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`18 scope.
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`19 THE WITNESS: It doesn't relate,
`
`20 again, for the same reason my answer is going to
`
`21 be that the claims, the elements of Claim 1 do not
`
`22 relate to the memory of a computer, and they
`
`1 relate, they describe the structure, makeup, and
`
`2 function of a GUI tool.
`
`3 BY MR. SOKOHL:
`
`* * *
`
`1 Q. Does the GUI tool of Claim 1 cause the
`
`2 computer to display the data to the screen faster
`
`3 than conventional GUI tools?
`
`4 MR. GANNON: Object to the form,
`
`5 scope.
`
`6 THE WITNESS: Again, my answer is
`
`7 going to be the elements of Claim 1 have nothing
`
`8 to do with displaying data on a screen faster or
`
`9 anything like that. They describe the structure,
`
`10 makeup, and function of a GUI tool.
`
`* * *
`
`6
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`CBM2016-00032
`U.S. Patent 7,212,999
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`14 Q. Does the GUI tool of Claim 1 cause the
`
`15 recited computer to communicate with the
`
`16 electronic exchange any faster than conventional
`
`17 GUI tools?
`
`18 MR. GANNON: Object to the form,
`
`19 scope.
`
`20 THE WITNESS: Again, the elements of
`
`21 Claim 1 do not cause the network -- it's nothing
`
`22 to do with the network elements of the computer,
`
`1 anything to do with that. They specifically
`
`2 describe the structure, makeup, and function of a
`
`3 GUI tool.
`
`4 BY MR. SOKOHL:
`
`5 Q. Other than the way that the data is
`
`6 displayed in the GUI tool of Claim 1, how else is
`
`7 it functionally different from conventional
`
`8 devices?
`
`9 MR. GANNON: Object to the form,
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`10 foundation.
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`11 THE WITNESS: In exactly the way as
`
`7
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`CBM2016-00032
`U.S. Patent 7,212,999
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`12 described in Claim 1.
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`Ex. 1047 at 248, 263-269. Rather than admit that the claimed invention does not
`
`improve computers, Mr. Thomas simply stating what was not explicitly recited by
`
`the claims. The probative value of this testimony is thus substantially outweighed
`
`by a danger of unfair prejudice and confusing the issues as the result of vague
`
`questioning. Accordingly, it should be excluded under FRE 403.
`
`IV. CONCLUSION
`
`For these reasons, the Board should grant Patent Owner’s Motion to Exclude
`
`Respectfully submitted,
`
`
`
`
`
`Date: March 29, 2017
`
`MCDONNELL BOEHNEN HULBERT &
`BERGHOFF LLP
`
`/Jennifer M. Kurcz/
`
`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`
`Counsel for Patent Owner
`
`300 South Wacker Drive
`Chicago, Illinois 60606
`(312) 913-0001
`
`
`
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`8
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`CBM2016-00032
`U.S. Patent 7,212,999
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`CERTIFICATION OF SERVICE
`
`Pursuant to 37 CFR §§ 42.6(s)(4) and 42.205(b), the undersigned certified
`
`that on March 24, 2017, a complete and entire copy or this PATENT OWNER’S
`
`MOTION TO EXCLUDE was provided via email to the Petitioners by serving
`
`correspondence address of record as follows
`
`
`
`
`
`/Cole B. Richter/
`Cole B. Richter,
`Counsel for Patent Owner,
`Reg. No. 65,398
`
`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori A. Gordon
`lgordon-PTAB@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`Donald R. Banowit
`dbanowit-PTAB@skgf.com
`
`John C. Phillips
`PTABINBOUND@fr.com
`
`PTAB@skgf.com
`
`
`
`
`
`Dated: March 29, 2017
`
`By:
`
`
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`
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`9
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