Paper No. ______
`Filed: April 19, 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.
`
`
`
`CBM2016-00051
`U.S. Patent 7,904,374
`
`
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE UNDER 37 C.F.R. § 42.64(c)
`
`
`
`
`
`
`Filed: April 19, 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.
`
`
`
`CBM2016-00051
`U.S. Patent 7,904,374
`
`
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE UNDER 37 C.F.R. § 42.64(c)
`
`
`
`
`
`
`
`CBM2016-00051
`U.S. Patent 7,904,374
`
`
`I.
`
`TSE HAS NOT BEEN AUTHENTICATED UNDER FRE 901.
`
`Petitioners argue that TT conceded that the Kawashima deposition transcript
`
`was admissible – and for this reason, TT’s motion fails. But TT did not concede
`
`that the 2005 Kawashima deposition transcript was admissible, and TT did not
`
`concede that the deposition transcript authenticates Exhibit 1003 (“TSE”). E.g.,
`
`CBM2016-00179, Paper 114. Rather, in other CBM proceedings, TT set forth an
`
`alternative argument that the deposition transcript and TT’s evidence from district
`
`court litigation should stand or fall together based on mutual hearsay objections.
`
`Id. at 6 (“[t]o the extent the Board excludes any of Patent Owner’s evidence from
`
`district court litigation, which it should not, the Board should likewise exclude the
`
`2005 Kawashima transcript.”).
`
`But even if the Kawashima deposition transcript is admitted, it does not
`
`authenticate TSE. Indeed, nothing in the record proves that TSE is the specific
`
`“prior art” document Petitioners assert it is. See Pet. at 14, 37.
`
`As explained in TT’s motion, the 2005 Kawashima transcript raises more
`
`doubt that it resolves. Citing Rosenberg v. Collins, Petitioners argue that TT’s
`
`criticism of the way Mr. Kawashima verified his identification of the TSE manual
`
`does not cut against authenticity in a way supported by law, but Rosenberg relates
`
`to the business record hearsay exception of FRE 803(6), not to whether a document
`
`is a particular “prior art” document. See 624 F.2d 659, 665 (5th Cir.1980). Opp. at
`
`1
`
`
`
`CBM2016-00051
`U.S. Patent 7,904,374
`
`
`4-5. Accordingly, it has no bearing on whether Mr. Kawashima ever authenticated
`
`any document as being the alleged “prior art” document cited by Petitioners.
`
`Further, whether or not TSE is a business record or appears to be an
`
`authentic TSE document, nothing establishes that it is the “prior art” document
`
`Petitioners cite to. Specifically, Petitioners argue that the document is
`
`authenticated under FRE 901(b)(4) because it has a distinctive layout and has
`
`illustrations as well as Bates numbering. Opp. at 7. But such characteristics of the
`
`purported TSE document do nothing to establish that the document is the alleged
`
`“prior art” document Petitioners cite as support for features that were “well-
`
`known” and “conventional.” See Pet. at 14. Indeed, these characteristics do
`
`nothing to establish that the document was publically available such that it
`
`demonstrates what was well-known or conventional in the art at the time. Rather,
`
`these characteristics, at best, show that the purported “prior art” TSE document is
`
`the same (or similar) TSE document other defendants have used in other related
`
`litigations. As such, it is not self-authenticated in any way that can establish it is
`
`prior art, or evidence of what was “well-known” or “conventional” at the time, in
`
`this proceeding.
`
`The 2016 deposition transcript does not include testimony putting to rest the
`
`deficiencies of the 2005 deposition. Instead, it once again suggests that Mr.
`
`2
`
`
`
`CBM2016-00051
`U.S. Patent 7,904,374
`
`
`Kawashima could not have examined the document in a way that would have
`
`differentiated it from any other version. Ex. 1040 at 45-46.
`
`As explained in TT’s motion, the 2016 deposition transcript also proves Mr.
`
`Kawashima’s bias. Paper 34 at 4-5. Petitioners argue that any doubts go to the
`
`weight of the testimony, not to its admissibility. Opp. at 7. TT agrees. Mr.
`
`Kawashima’s bias goes to the weight that his testimony should be given. Mr.
`
`Kawashima’s testimony should be given no weight, so it cannot authenticate TSE.
`
`II. CONCLUSION
`
`The Board should grant Patent Owner’s Motion to Exclude
`
`Respectfully submitted,
`
`
`
`
`
`Date: April 19, 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
`
`
`
`
`3
`
`
`
`CBM2016-00051
`U.S. Patent 7,904,374
`
`
`CERTIFICATION OF SERVICE
`
`Pursuant to 37 CFR §§ 42.6(s)(4) and 42.205(b), the undersigned certified
`
`that on April 19, 2017, a complete and entire copy or this PATENT OWNER’S
`
`REPLY IN SUPPORT OF ITS 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
`
`John C. Phillips
`phillips@fr.com
`
`Kevin Su
`su@fr.com
`
`Michael T. Rosato
`mrosato@wsgr.com
`
`CBM41919-0013CP1@fr.com
`
`PTABInbound@fr.com
`
`
`
`Dated: April 19, 2017
`
`By:
`
`
`
`
`
`4
`
`
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