Paper No. ______
`Filed: September 25, 2017
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`
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`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.
`
`
`Case CBM2016-00051
`Patent No. 7,904,374
`
`
`
`
`PATENT OWNER’S MOTION TO MAINTAIN CONFIDENTIAL
`INFORMATION UNDER SEAL PENDING DISPOSITION OF APPEAL
`
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`Filed: September 25, 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.
`
`
`Case CBM2016-00051
`Patent No. 7,904,374
`
`
`
`
`PATENT OWNER’S MOTION TO MAINTAIN CONFIDENTIAL
`INFORMATION UNDER SEAL PENDING DISPOSITION OF APPEAL
`
`
`
`
`
`
`
`
`
`
`
`
`Case CBM2016-00051
`Patent No. 7,904,374
`
`
`I.
`
`Statement of Relief Requested
`Pursuant to this Board’s authorization on September 20, 2017, Trading
`
`Technologies International, Inc. (“TT” or “Patent Owner”), respectfully requests
`
`that all sealed documents in CBM2016-00051 be preserved in non-public form
`
`pending disposition of any appeals. Moreover, within 10 days of the disposition of
`
`all appeals in this matter, Patent Owner respectfully requests that all confidential
`
`information filed by Patent Owner be expunged from the record pursuant to Rule
`
`42.56 and not be made public.
`
`Patent Owner has conferred with Petitioner on both requests and Petitioner
`
`does not oppose.
`
`II. Reasons Why Requested Relief Should Be Granted
`A. The Record Should be Preserved Pending Appeal So the Federal
`Circuit Has Full Access to the Record
`The Federal Rules of Appellate Procedure and the Federal Circuit Rules
`
`require that the record be retained by the Board pending appeal. Specifically,
`
`Federal Circuit Rule 17(a) states that “[t]he agency must retain the record.”
`
`Federal Circuit Rule 17(d), titled “Access of Parties and Counsel to Original
`
`Record” also requires that the parties and their counsel have access to both the
`
`sealed and unsealed portions of the record “[w]hen a petition for review or notice
`
`of appeal is filed.” Patent Owner plans to file a timely Notice of Appeal from the
`
`Board’s Final Written Decision (Paper 44).
`
`
`
`If the record is not preserved in its entirety, including any sealed portions,
`
`Case CBM2016-00051
`Patent No. 7,904,374
`
`
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`and an appeal is taken, the Federal Circuit will not be able to fully consider the
`
`issues, which would cause prejudice to Patent Owner and violate the appellate
`
`rules. Moreover, as the Board did not rely on any of this confidential information
`
`in its final written decision, such information may properly be maintained under
`
`seal here. (See Paper 44, at 23).
`
`B.
`
`Subsequent to the Disposition of Appeal, Confidential
`Information Should be Expunged
`Additionally, Patent Owner respectfully requests that subsequent to the
`
`dispositions of all appeals, all sealed confidential information filed on the CBM
`
`docket be expunged for the reasons set forth below.
`
`1.
`
`The Motion to Seal Covered Confidential Business
`Information
`In connection with its Patent Owner’s Response, TT filed a Motion to Seal.
`
`(Paper 20). This motion covered certain exhibits containing or referring to
`
`confidential business information. (Exhibits 2294-2295). TT identified that the
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`sealed papers contain sensitive business information that would not otherwise be
`
`published or made available to the public. As this information was not relied on in
`
`the Final Written Decision here, (Paper 44, at 23), protecting the confidential
`
`material throughout the appeals does not impact the public interest in obtaining
`
`access to these proceedings.
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`
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`- 2 -
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`Case CBM2016-00051
`Patent No. 7,904,374
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`2.
`
`The Sealed Documents were not Relied on by the Board in
`the Final Written Decision
`For the same reasons set forth in Patent Owner’s Motion to Seal, namely that
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`the sealed information “contain[s] information identified . . . as sensitive, non-
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`public information that a business would not make public,” (Paper 20, at 2), all the
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`information filed under seal in this matter should be expunged from the record
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`within 10 days of the disposition of all appeals. Expunging the sealed information
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`will avoid the prejudice to parties that would be caused by public disclosure of
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`their sealed information. The information Patent Owner seeks to have expunged
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`after the disposition of appeals is as follows: Exhibits 2294-2295. These materials
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`include, “excerpts of district court Deposition Transcript of Dr, J. Mellor marked
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`‘Confidential - Attorneys’ Eyes Only’” and “excerpts of district court Deposition
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`Transcript of R. Ferraro vol. II marked ‘Confidential.’” (Paper 20, at 4). To TT’s
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`knowledge, these transcripts have not been made public. (Id.). These materials
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`were not relied on in the Final Written Decision. (Paper 44, at 23).
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`III. Conclusion
`Patent Owner respectfully requests that the entire CBM record be preserved
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`in its present form pending appeal, including preservation of documents filed under
`
`seal in non-public form.
`
`Within 10 days after disposition of any appeals, Patent Owner requests that
`
`the sealed materials be expunged from the CBM docket.
`
`
`
`- 3 -
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`
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`Case CBM2016-00051
`Patent No. 7,904,374
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`Respectfully submitted,
`
`Dated: September 25, 2017
`
`By: /Jennifer M. Kurcz/
`
`
`
`
`
`
`
`
`
`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`BAKER & HOSTETLER LLP
`191 North Wacker Drive
`Suite 3100
`Chicago, IL 60606-1901
`312-416-6200
`jkurcz@bakerlaw.com
`
`Counsel for Patent Owner
`Trading Technologies International, Inc.
`
`
`- 4 -
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`
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`Case CBM2016-00051
`Patent No. 7,904,374
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on September 25, 2017, a copy of the
`
`
`
`foregoing PATENT OWNER’S MOTION TO MAINTAIN CONFIDENTIAL
`
`INFORMATION UNDER SEAL PENDING DISPOSITION OF APPEAL
`
`was served via e-mail on the following:
`
`
`
`John C. Phillips
`FISH & RICHARDSON, PC
`12390 El Camino Real
`San Diego, CA 92130
`phillips@fr.com
`CBM41919-0013CP1@fr.com
`PTABInbound@fr.com
`
`Kevin Su
`FISH & RICHARDSON, PC
`One Marina Park Drive
`Boston, MA 02210-1878
`su@fr.com
`
`Michael T. Rosato
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`mrosato@wsgr.com
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`Case CBM2016-00051
`Patent No. 7,904,374
`
`
`
`/Jennifer M. Kurcz/
`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`BAKER & HOSTETLER LLP
`191 North Wacker Drive
`Suite 3100
`Chicago, IL 60606-1901
`312-416-6200
`jkurcz@bakerlaw.com
`Counsel for Patent Owner
`Trading Technologies International, Inc.
`
`- 2 -
`
`
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