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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`IBG LLC,
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`Petitioners
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
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`____________
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`Case CBM2016-00051
`Patent No. 7,904,374
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`___________
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`PETITIONERS’ OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE UNDER 37 C.F.R. 42.64(C)
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`Proceeding No.: CBM2016-00051
`Attorney Docket: 41919-0013CP1
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`TABLE OF CONTENTS
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`INTRODUCTION ............................................................................................... 1
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` ARGUMENT ...................................................................................................... 2
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`A. The TSE manual has been properly authenticated. ....................................... 2
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`1.
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`TT has conceded that the 2005 Kawashima deposition transcript is
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`permissible hearsay; TT thus moots its own evidentiary objection. ................... 2
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`2. Admissible evidence shows that Exhibit 1003 is what Petitioners purport;
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`TT’s arguments to the contrary are without merit. ............................................. 3
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` CONCLUSION ................................................................................................ 8
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`Proceeding No.: CBM2016-00051
`Attorney Docket: 41919-0013CP1
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`INTRODUCTION
`Patent Owner (“TT”) raises two evidentiary objections in its Motion to
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`Exclude. (Paper 34.) The first challenges the authenticity of the TSE manual, (Ex.
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`1003) and the second seeks to exclude the authenticating evidence, the transcript of
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`a 2005 deposition of Atshushi Kawashima (Ex. 1009) because it is allegedly hearsay
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`under FRE 801 and supposedly irrelevant as Petitioners have not cited it thus far.
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`Both objections lack merit. Notably, the Board has already rejected an
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`admissibility challenge based on similar arguments and the same evidence in a
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`related proceeding, and it should do so here for the same reasons. (See CBM2015-
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`00182 Paper 129 at 22-27.)
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`First, no legitimate challenge can be made to the authenticity of the TSE
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`manual. There is unequivocal and reliable evidence to support the finding that
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`Exhibit 1003 is what it purports to be: namely, a 1998 publication issued by the
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`Tokyo Stock Exchange. (Ex. 1009, 9:19-10:9, 10:19-24, 11:1-3, 11:11-24; Ex. 1040,
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`45:7-46:3.) This 1998 publication has been twice authenticated by an employee of
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`the Tokyo Stock exchange, Atshushi Kawashima, who TT has twice deposed—once
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`in a related CBM proceeding (CBM2015-00181, Ex. 2163, Ex. 1040 in this
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`proceeding) and once in 2005 (Ex. 1009). Given these circumstantial guarantees of
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`trustworthiness, TT conceded that the 2005 deposition transcript is permissible
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`hearsay in a related proceeding. (CBM2015-00181, Paper 109 at 3). TT does not
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`1
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`Proceeding No.: CBM2016-00051
`Attorney Docket: 41919-0013CP1
`point to any evidence suggesting that Exhibit 1003 is not the 1998 TSE manual.
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`Moreover, TT’s argument that the transcript should be excluded as irrelevant
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`because Petitioners have not relied on it thus far should be rejected. Petitioners filed
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`Exhibit 1009 and served Exhibit 1040 anticipating that TT would challenge the
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`authenticity of the TSE manual. Now that TT has indeed filed a motion to exclude,
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`Petitioners now rely on Exhibit 1009 (and 1040) to overcome TT’s authenticity
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`objection to the TSE manual thus rendering TT’s irrelevancy argument moot.
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`Accordingly, the Board should deny TT’s Motion to Exclude.
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` ARGUMENT
`A. The TSE manual has been properly authenticated.
`1.
`TT has conceded that the 2005 Kawashima deposition
`transcript is permissible hearsay; TT thus moots its own
`evidentiary objection.
`TT asserts that Petitioners failed to authenticate the TSE manual (Exhibit
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`1003) because the 2005 Kawashima deposition transcript—which authenticates the
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`TSE manual—is allegedly hearsay. Yet TT undermined all of its alleged “doubts”
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`about the authenticity of the TSE manual when it conceded that it is admissible
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`hearsay in a related CBM proceeding. (CBM2015-00181, Paper 109 at 2-7, 3.)
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`(“[T]he residual hearsay objection of FRE 807 applies to . . . the 2005 Kawashima
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`deposition transcript.”) TT presumably took that position hoping to receive
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`favorable treatment of its own unrelated testimonial evidence from the related
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`Proceeding No.: CBM2016-00051
`Attorney Docket: 41919-0013CP1
`district court litigation, arguing that “Patent Owner’s evidence from district court
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`litigation and the 2005 Kawashima deposition transcript should stand or fall
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`together.” (Id. at 6, emphasis added.) Now that TT does not see any benefit to
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`conceding the admissibility of the 2005 Kawashima deposition transcript in this
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`proceeding, TT wants to retract its previous concessions. TT should not be allowed
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`to do so. Having conceded that Exhibit 1009 is permissible hearsay, TT should be
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`taken at its word. As such, its motion fails.
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`2.
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`Admissible evidence shows that Exhibit 1003 is what
`Petitioners purport; TT’s arguments to the contrary are
`without merit.
` Petitioners have produced unequivocal and unrebutted evidence showing that
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`Exhibit 1003 is the TSE manual. That 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
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`English translation bears the name of the “Tokyo Stock Exchange Operation System
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`Division” and the date “August, 1998.” (Ex. 1003 at 5.) The 2005 deposition of Mr.
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`Kawashima provides further supporting evidence of authenticity. (Ex. 1009.) Mr.
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`Kawashima’s testimony establishes that: (1) Exhibit 1003 is “the current futures
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`options trading system -- trade manual” (compare Ex. 1003 at 1, marked “DX 179”
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`with bates numbering “TSE 647-981”; with Ex. 1009, 9:19-10:9); (2) confirmed that
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`the document was prepared and disseminated in 1998 by the Tokyo Stock Exchange
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`(Ex. 1009, 10:19-24, 12:22-24); (3) that Mr. Kawashima had personal knowledge of
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`Proceeding No.: CBM2016-00051
`Attorney Docket: 41919-0013CP1
`that, as he “was in charge of preparing this document” (Id. at 11:3); (4) that he
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`prepared Exhibit 1003 in the ordinary course of business, as a regular practice of the
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`Tokyo Stock Exchange (Id. at 11:4-14); and (5) that Exhibit 1003 was maintained
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`thereafter at the Tokyo Stock Exchange in the ordinary course of business. (Id. at
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`11:15-24.) Accordingly, there is no question that Exhibit 1003 is the TSE manual
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`referred to in the deposition. Furthermore, independent of Kawashima’s 2005
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`deposition testimony (Exhibit 1009) Petitioners authenticated the TSE manual
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`during Mr. Kawashima’s second deposition in a related proceeding. (CBM2015-
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`00181, Ex. 1040, 45:7-46:3.) Thus, regardless of whether his prior testimony is
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`considered, the TSE manual has been properly authenticated.
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`(a) Exhibit 1003 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 1003 is what Petitioners claims 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,
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`Paper 60 at 22 (P.T.A.B. Sept. 18, 2014). Mr. Kawashima “was in charge of
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`preparing the document.” (Ex. 1009 at 11:3.) He is, and was, competent to identify
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`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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`Proceeding No.: CBM2016-00051
`Attorney Docket: 41919-0013CP1
`competent to lay the foundation for the admissibility of the records; he need not
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`have been the preparer of the record, nor must he personally attest to the accuracy
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`of the information contained in the records.”) See, e.g., EMC Corp. v. Personalweb
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`Techs., LLC, IPR2013-00084, Paper 64 at 44 (May 15, 2014) (rejecting argument
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`that a witness cannot authenticate a document unless he himself authored it). TT’s
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`criticism of the way Mr. Kawashima verified his identification of the TSE manual
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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. (Paper 34 at 3-4.) TT does not cite any
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`legal authority in support of the unreasonably high standard it asks the Board to
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`impose on Mr. Kawashima. Nor does the law require a witness to specify precisely
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`how they would go about confirming their identification of a document, given that
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`a witness need not attest to its complete accuracy. See Rosenberg, 624 F.2d at 665.
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`(b)
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`Exhibit 1003 is self-authenticated under Fed. R. Evid.
`902(11).
`Additionally, Exhibit 1003 is self-authenticated under Fed. R. Evid. 902(11)
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`because it comes from the business records of the Tokyo Stock Exchange. Mr.
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`Kawashima’s testimony establishes that preparation and maintenance of manuals,
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`such as the TSE manual, was a regularly conducted activity by the Tokyo Stock
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`Exchange. (See, e.g., Ex. 1009, 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
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`Proceeding No.: CBM2016-00051
`Attorney Docket: 41919-0013CP1
`business record exception” and “meet the authentication standard.” Dataquill Ltd.
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`v. Handspring, Inc., 2002 WL 31870560 at *3 (N.D. Ill. Dec. 23, 2002). Mr.
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`Kawashima’s testimony stands unrebutted that the TSE manual was prepared and
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`maintained as a regularly conducted activity in the ordinary course of business (Ex.
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`1009, 11:4-24). Fed. R. Evid. 803(6)(B)-(D). When Mr. Kawashima testified in
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`2005 as to its authenticity, the TSE manual was only seven years old. (Ex. 1009,
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`10:19-24.) Fed. R. Evid. 803(6)(A). TT has not shown, nor can it, that “the source
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`of information or the method or circumstances of preparation indicate any lack of
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`trustworthiness.” Fed. R. Evid. 803(6)(E). TT’s suggestion that Mr. Kawashima’s
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`testimony is conclusory does not establish untrustworthiness. (Paper 34 at 5). And
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`TT’s allegation that Mr. Kawashima is biased is merely self-serving speculation.
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`(Id. at 8.) Indeed, this Board has rejected exactly the same unfounded allegations
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`of bias TT makes here in a related proceeding, and TT offers no reason whatsoever
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`why the Board should not reach the same conclusion on the same arguments and
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`the same evidence as it did before. (See CBM2015-00182 Paper 129 (Final
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`Written Decision) at 23 (“we are not persuaded that Mr. Kawashima is an
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`interested witness”).) Accordingly, all of the requirements for authenticating the
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`TSE manual (Exhibit 1003) as a record of regularly conducted activity are satisfied
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`in this case. Fed. R. Evid. 902(11).
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`c) Exhibit 1003 is authenticated under Fed. R. Evid. 901(b)(4).
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`Proceeding No.: CBM2016-00051
`Attorney Docket: 41919-0013CP1
`And, although not necessary, the TSE manual is authenticated under Fed. R.
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`Evid. 901(b)(4) which provides that “appearance, contents, substance, internal
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`patterns, or other distinctive characteristics of the item, taken together with all the
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`circumstances” is sufficient to satisfy the Fed. R. Evid. 901(a). Exhibit 1003 shows
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`a distinctive layout with a large number of unique illustrations. Exhibit 1003 also
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`includes the Bates numbering applied in connection with the related district court
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`action. (Ex. 1003, marked “DX 179” with bates numbers “TSE 647-981,” and page
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`numbering “1-1,” etc.) This branding is distinctive and confirms the authenticity of
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`Exhibit 1003. A distinctive circumstance here also includes that Mr. Kawashima
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`made himself available for cross-examination in a related proceeding. In view of
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`this, Petitioners have laid a sufficient foundation to establish that Exhibit 1003 is
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`authentic under Fed. R. Evid. 901(b)(4). See, e.g., Ericsson Inc. v. Intellectual
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`Ventures I LLC, IPR2014-00527, Paper 41 at 12 (P.T.A.B. May 18, 2015) (finding
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`collection of papers with sequential pages authenticated). Accordingly, because
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`Petitioners properly authenticated the TSE manual in numerous ways, and TT
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`offers no evidence suggesting the TSE manual is not what Petitioners purport it is,
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`TT’s request to exclude Exhibit 1003 should be denied. And even if TT had raised
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`legitimate questions, which TT has not, “[a]ny doubts. . . [go] to the weight and not
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`the admissibility of the [evidence].” United States v. Albert, 595 F.2d 283, 290 (5th
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`Cir.1979), cert. denied, 444 U.S. 963 (1979).
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`Proceeding No.: CBM2016-00051
`Attorney Docket: 41919-0013CP1
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` CONCLUSION
`For the above reasons, Patent Owner’s Motion to Exclude should be denied.
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`Dated: April 12, 2017
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`Respectfully submitted,
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`/John C. Phillips/
`John C. Phillips
`Reg. No. 35,322
`Fish & Richardson, P.C.
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`Attorney for Petitioners
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`Proceeding No.: CBM2016-00051
`Attorney Docket: 41919-0013CP1
`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR §§ 42.6(e)(4) and 42.6(e)(4)(iii), the undersigned certifies
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`that on April 12, 2017, a complete and entire copy of this Petitioners’ Opposition to
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`Patent Owner’s Motion to Exclude was provided via email to the Patent Owner, by
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`serving the correspondence address of record as follows:
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`Leif R. Sigmond, Jr., Cole B. Richter,
`Michael D. Gannon and Jennifer M. Kurcz
`McDonnell, Boehnen, Hulbert & Berghoff LLP
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`Steven F. Borsand, Jay Q. Knobloch
`Trading Technologies International, Inc.
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`Email: sigmond@mbhb.com
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`richter@mbhb.com
`gannon@mbhb.com
`kurcz@mbhb.com
`tt-patent-cbm@tradingtechnologies.com
`Trading-Tech-CBM@finnegan.com
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`/Diana Bradley/
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`Diana Bradley
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(858) 678-5667
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