UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`IBG LLC,
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
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`Petitioner,
`v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
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`Patent Owner.
`_________________
`Case CBM2016-00051
`U.S. Patent 7,904,374 B2
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`Patent Owner’s Objections to
`Evidence Pursuant to 37 C.F.R. § 42.64
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`IBG LLC,
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
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`Petitioner,
`v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
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`Patent Owner.
`_________________
`Case CBM2016-00051
`U.S. Patent 7,904,374 B2
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`Patent Owner’s Objections to
`Evidence Pursuant to 37 C.F.R. § 42.64
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`Case CBM2016-00051
`U.S. Patent 7,904,374 B2
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner objects to the following
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`Petitioner Exhibits:
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` 1003 (Certified Translation of “Futures/Options Purchasing System
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`Trading Terminal Operational Guide”);
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` 1004 (U.S. Patent No. 5,297,031 to Gutterman);
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` 1005 (WO 90/11571 to Belden, et al.);
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` 1006 (Certificate of Translation for “System for Buying and Selling
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`Futures and Options Transaction Terminal Operational Guidelines”);
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` 1009 (Deposition Transcript of Atsushi Kawashima, Trading Techs.
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`Int’l, Inc., v. eSPEED, Inc., Case No. 04-cv-5312, United States
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`District Court, Northern District of Illinois, Eastern Division, dated
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`November 21, 2005);
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` 1010 (“Futures/Option Purchasing System Trading Terminal
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`Operation Guide,” Tokyo Stock Exchange);
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` 1011 (Expert Declaration of Kendyl A. Roman);
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` 1012 (Lodewijk Petram, The World’s First Stock Exchange);
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` 1013 (History of the American and NASDAQ Stock Ex-changes);
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` 1016 (The American Heritage Dictionary of the English Language, 3d
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`Case CBM2016-00051
`U.S. Patent 7,904,374 B2
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`ed. 1992);
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` 1017 (MPEP 2106);
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` 1020 (Weiss, “After the Trade is Made”);
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` 1021 (U.S. Patent No. 5,375,055 to Togher et al.);
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` 1034 (U.S. Patent No. 5,960,411 to Harman Peri et al.);
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` 1035 (Dictionary of Computing (4th Ed, Oxford University Press,
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`1996)); and
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` 1036 (Inside Macintosh, Promotional Edition).
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`I.
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`OBJECTION TO PETITIONER EXHIBIT 1011
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`Patent Owner objects to Exhibit 1011 because it contains unreliable
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`testimony under FRE 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
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`(1993). In particular, Mr. Román’s declaration includes numerous purported
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`“expert” opinions on matters about which Mr. Román is not qualified to offer such
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`“expert” testimony. Mr. Román has insufficient knowledge, skill, experience,
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`training, and education regarding trading and/or trading GUI design. Yet Mr.
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`Román repeatedly opines about the understanding of a person of ordinary skill in
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`U.S. Patent 7,904,374 B2
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`the art in the relevant time period with respect to such subjects. See, e.g., ¶¶ 67,
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`73, and 76-84.
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`II.
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`OBJECTION TO PETITIONER EXHIBITS 1003-1006, 1010, 1012,
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`1013, 1016, 1017, 1020, 1021, and 1034-1036
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`Patent Owner objects to Exhibits 1003-1006, 1010, 1012, 1013, 1016, 1017,
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`1020, 1021, and 1034-1036 to the extent that Petitioner relies on their contents for
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`the truth of the matters asserted therein. Exhibits 1003-1006, 1010, 1012, 1013,
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`1016, 1017, 1020, 1021, and 1034-1036 are inadmissible hearsay under FRE 801
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`and 802, and no exception applies.
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`III.
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`OBJECTION TO PETITIONER EXHIBITS 1003, 1006, and 1010
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`Petitioner has submitted no evidence to authenticate Exhibit 1010, and
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`deficient evidence for Exhibit 1003 as set forth below, making both inadmissible
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`under FRE 901.
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`Patent Owner also objects to Exhibit 1003, 1006, and 1010 under FRE 602.
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`Petitioner fails to provide a credible translation of TSE and fail to conform with the
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`Board’s rules for submitting translations of foreign language documents. In
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`particular, 37 C.F.R. § 42.63(b) requires that “[w]hen a party relies on a document
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`or is required to produce a document in a language other than English, a translation
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`U.S. Patent 7,904,374 B2
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`of the document into English and an affidavit attesting to the accuracy of the
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`translation must be filed with the document.” The record lacks such an affidavit
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`under Rule 42.63(b) attesting to the accuracy because Mr. Cohen: (1) incorrectly
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`refers to “2014.05.19 - 1003 – TSE” as an English translation; and (2) on
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`information and belief, he did not, himself, translate the Japanese language TSE
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`into English, thereby demonstrating his lack of personal knowledge regarding the
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`matter for which he is testifying. See FRE 602 (requiring personal knowledge to
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`testify to a matter). Exhibit 1006 is noncompliant with 37 C.F.R. § 42.63(b). This
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`makes Exhibit 1010 and 1003 inadmissible under 37 C.F.R. § 42.61(a) (“Evidence
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`that is not taken, sought, or filed in accordance with this subpart is not
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`admissible.”). Furthermore, Exhibit 1003 is an inherently subjective translation
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`from Japanese to English and prejudicial and misleading under FRE 403.
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`Patent Owner further objects to Exhibit 1010 under FRE 403 and FRE
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`1003. The copy of the Japanese language TSE document (Exhibit 1010) is illegible
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`in many places (e.g., 54-63, 91-120, 137-143) and therefore cannot be used to
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`verify the accuracy of the translation.
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`Patent Owner further objects to Exhibit 1003 under FRE 403. Exhibit 1003
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`substitutes nearly verbatim Patent Owner’s own translation of the TSE’s Chapter 7
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`for the inaccurate translation previously provided by Petitioner’s counsel.
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`Compare Ex. 1003, 91-120 with CBM2016-00009, Ex. 2020, Appx. E. Despite
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`having copied Patent Owner’s translation into Exhibit 1003, on pages 7-25 and 7-
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`26 (see Exhibit 1016, 115-116), Petitioner omits two translator’s notes from Patent
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`Owner’s original translation. Exhibit 1003 is therefore incomplete, misleading,
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`and inadmissible under FRE 403.
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`IV.
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`OBJECTION TO PETITIONER EXHIBIT 1009
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`Patent Owner objects to Exhibit 1009 to the extent that Petitioner relies on
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`its contents for the truth of the matters asserted therein. Exhibit 1009 is
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`inadmissible hearsay under FRE 801 and 802, and no exception applies.
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`Patent Owner also objects to portions of Exhibit 1009 under FRE 401 and
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`402 as irrelevant, or in the alternative, under FRE 403 as a waste of time.
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`Petitioner has not cited to the exhibit. Exhibit 1009 is therefore irrelevant and a
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`waste of time.
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`V.
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`OBJECTION TO PETITIONER EXHIBIT 1017
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`Patent Owner objects to Exhibit 1017 under FRE 401 and 402 as irrelevant,
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`or, in the alternative, under FRE 403 as confusing and a waste of time. Exhibit
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`1017 contains a non-current revision of Section 2106 of the Manual of Patent
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`U.S. Patent 7,904,374 B2
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`Examining Procedure and is therefore inadmissible under FRE 401 and 402 as
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`irrelevant, or, in the alternative, under FRE 403 as confusing and a waste of time.
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`VI.
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`OBJECTION TO PETITIONER EXHIBIT 1003-1005, 1020, 1021,
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`1034, and 1036
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`Petitioner relies on Exhibits 1003-1005, 1020, 1021, 1034, and 1036 as
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`disclosing certain features of the claims of the ’374 patent. However, Exhibits
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`1003-1005, 1020, 1021, 1034, and 1036 are irrelevant to the single § 101 ground
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`instituted by the Board, and are therefore inadmissible under FRE 401 and 402
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`because they lack a tendency to make any fact at issue in this proceeding more or
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`less probable.
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`Respectfully submitted,
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`By: /Rachel L. Emsley/
`Rachel L. Emsley, Backup Counsel
`Registration No. 63,558
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`7
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`Dated: August 31, 2016
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`Case CBM2016-00051
`U.S. Patent 7,904,374 B2
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing Patent
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`Owner’s Objections to Evidence Pursuant to 37 C.F.R. § 42.64 were served on
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`August 31, 2016, via email directed to counsel of record for the Petitioner at the
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`following:
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`John C. Phillips
`CBM41919-0004CP1@fr.com
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`Kevin Su
`PTABInbound@fr.com
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`Michael T. Rosato
`mrosato@wsgr.com
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`Dated: August 31, 2016
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`
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`/Maria Kennedy/
`Maria Kennedy
`Litigation Clerk
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`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
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