Paper No. ______
`Filed: May 24, 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 CBM2016-0054
`U.S. Patent 7,693,768
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE
`
`
`
`
`
`
`
`
`Filed: May 24, 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 CBM2016-0054
`U.S. Patent 7,693,768
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE
`
`
`
`
`
`
`
`
`
`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION ........................................................................................... 1
`
`II.
`
`STANDARD .................................................................................................... 1
`
`III. TSE SHOULD BE EXCLUDED .................................................................... 1
`
`A.
`
`TT Timely Objected .............................................................................. 1
`
`B.
`
`TSE Has Not Been Authenticated under FRE 901 ............................... 2
`
`1.
`
`2.
`
`The 2005 Kawashima deposition testimony is
`hearsay......................................................................................... 2
`
`Even if the 2005 Kawashima deposition testimony
`were admissible, the deposition testimony raises
`more doubt than it resolves. ........................................................ 3
`
`C.
`
`Petitioners’ TSE Translation Copies From TT’s
`Translation But Omits Translator Notes ............................................... 5
`
`IV. CONCLUSION ................................................................................................ 6
`
`
`
`i
`
`
`
`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`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 TSE (Ex. 1016) and the associated translation (Ex.
`
`1017) because Petitioners have failed to meet the authentication requirements of
`
`FRE 901 and because the only purportedly authenticating evidence (Ex. 1019, the
`
`transcript of a 2005 deposition of Atshushi Kawashima) is hearsay under FRE 801.
`
`Further, the translation (Ex. 1017) should be excluded because it is incomplete,
`
`misleading, and inadmissible under FRE 106 & 403.
`
`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. TSE SHOULD BE EXCLUDED
`
`A. TT Timely Objected
`
`Petitioner introduced TSE Exhibits 1016 and 1017 in its Petition, contending
`
`that TSE is a printed publication and relying on TSE for all instituted prior art
`
`grounds. Petition, Paper 4 at, e.g., 11-13, 31-71. Patent Owner timely objected to
`
`1
`
`
`
`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`the TSE exhibits on November 1, 2016 as unauthenticated, failing to comply with
`
`FRE. 602 and 37 C.F.R. § 42.63(b), being inadmissible hearsay evidence, and
`
`being incomplete, misleading, and inadmissible under FRE 106 & 403. Paper 15.
`
`B.
`
`TSE Has Not Been Authenticated under FRE 901
`
`The Federal Rules of Evidence apply to the current proceedings. 37 C.F.R. §
`
`42.62. Fed. R. Evid. 901 requires parties to authenticate documents. To satisfy the
`
`requirement of authenticating or identifying an item of evidence, the proponent
`
`must produce evidence sufficient to support a finding that the item is what the
`
`proponent claims it is. Fed. R. Evid. 901(a).
`
`Petitioners can cite to no evidence sufficiently authenticating TSE. To the
`
`extent Petitioners rely on a transcript of a 2005 deposition of Atshushi Kawashima
`
`(Ex. 1019), this transcript is insufficient in multiple respects.
`
`1.
`
`The 2005 Kawashima deposition testimony is hearsay
`
`The 2005 deposition of Atshushi Kawashima (Ex. 1019), insufficiently
`
`authenticates TSE because this deposition was conducted in a district court case,
`
`not any of the CBM proceedings. Ex. 1019 at 1. As a result, the 2005 Kawashima
`
`deposition is, by definition, hearsay.
`
`FRE 801 defines hearsay as “a statement that: (1) the declarant does not
`
`make while testifying at the current trial or hearing; and (2) a party offers in
`
`evidence to prove the truth of the matter asserted in the statement.” Since
`
`2
`
`
`
`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`testimony by Mr. Kawashima in the district court case was not made “while
`
`testifying at the current trial or hearing,” to the extent such testimony is used to
`
`prove the authenticity of TSE, it must be considered hearsay.
`
`2.
`
`Even if the 2005 Kawashima deposition testimony were
`admissible, the deposition testimony raises more doubt than
`it resolves.
`
`Rather than supporting a finding under FRE 901(a) that TSE is what
`
`Petitioners claim it is, the 2005 Kawashima deposition transcript ultimately raises
`
`additional doubts as to the authenticity of the document.
`
`For example, in the deposition, Mr. Kawashima draws a conclusion about
`
`the authenticity of TSE, a document of hundreds of pages, based on the perceived
`
`absence of a mark in “looking briefly through” the document. Specifically, he
`
`testified:
`
`Q Is this entire document, this document identified as Defendant’s
`
`Exhibit 179, from August 24 of 1998?
`
`A Yes.
`
`Q How do you know?
`
`A Because when we replace sections there is a mark indicating a
`
`correction at the bottom of the page. And just looking briefly through
`
`this document, I didn’t see that mark and therefore I thought that was
`
`the original date.
`
`3
`
`
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`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`Ex. 1019, pp. 97-98.
`
`Further, when asked how one would know if a distributed manual were the
`
`same as a particular copy, Mr. Kawashima merely makes the conclusory assertion
`
`that a comparison would reveal whether a distributed copy was the same, without
`
`any detail as to how such a comparison would be carried out how what level of
`
`scrutiny might be required. Specifically, he testified:
`
`Q Is there any way to tell that the manual that was distributed is the
`
`same as Defendant's Exhibit 179?
`
`A If you were to compare this with the distributed manual you would
`
`be able to tell.
`
`Ex. 1019, p. 99.
`
`Finally, Mr. Kawashima’s testimony cannot be relied upon as to
`
`authentication because he is not a disinterested witness. Kawashima’s employer,
`
`the Tokyo Stock Exchange, challenged TT’s Japanese counterpart to U.S. Patent
`
`No. 6,766,304, which was asserted in the litigation in which Kawashima
`
`previously testified. CBM2015-00179, Paper No. 77 at 40-41. Moreover, at his
`
`deposition in connection with co-pending proceedings,
`
`CBM2015-00179, -00181, -00182, when Mr. Kawashima was asked if he was
`
`attending voluntarily, he answered that he was present at the direction of the Tokyo
`
`Stock Exchange. Exhibit 1045, p. 9. Further, he acknowledged that he “did a
`
`4
`
`
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`CBM2016-00054
`U.S. Patent 7,693,768
`
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`practice run or went through anticipated questions that might come out” with
`
`Petitioners’ counsel Lori Gordon and Natalie Morgan. Id. at pp 11-12.
`
`The 2016 Kawashima deposition does not resolve the deficiencies of the
`
`2005 deposition. Instead, it suggests that Mr. Kawashima could not have examined
`
`the document in a way that would have differentiated it from any other version. Ex.
`
`1045 at 45-46. Thus, the 2016 transcript also proves Mr. Kawashima’s bias. This
`
`bias establishes that his testimony should be given no weight. And as such, TSE
`
`stands unauthenticated.
`
`In view of the above, Petitioners have not produced evidence sufficient to
`
`support a finding that TSE is what Petitioners claim it is. TSE should thus be
`
`excluded.
`
`C.
`
`Petitioners’ TSE Translation Copies From TT’s Translation But
`Omits Translator Notes
`
`The Board should also exclude Exhibit 1017 because it is incomplete,
`
`misleading, and inadmissible under Fed. R. Evid. 106 & 403. Petitioners’ Exhibit
`
`1017 substitutes nearly verbatim Patent Owner’s own translation of the TSE’s
`
`Chapter 7 for an inaccurate translation previously provided by Petitioners’ counsel.
`
`Compare Ex. 1017, 91-120 with Ex. 2178, pp. 15-44. Despite having copied
`
`Patent Owner’s translation into Exhibit 1017, on pages 7-25 and 7-26 (Exhibit
`
`1017, 115-116), Petitioners omit two translator’s notes from Patent Owner’s
`
`5
`
`
`
`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`original translation (Ex. 2178, 39-40). Exhibit 1017 is therefore incomplete,
`
`misleading, and inadmissible under Fed. R. Evid. 106 & 403.
`
`IV. CONCLUSION
`
`For these reasons, the Board should grant Patent Owner’s Motion to Exclude
`
`
`
`
`Dated: May 24, 2017
`
`By:
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`/Cole B. Richter/
`Cole B. Richter,
`Counsel for Patent Owner
`Reg. No. 65,398
`
`
`
`McDonnell Boehnen Hulbert &
`Berghoff LLP
`300 South Wacker Drive
`Chicago, Illinois 60606
`(312) 913-0001 Telephone
`(312) 913-0002 Facsimile
`
`6
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`
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`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing Patent
`
`Owner’s Motion to Exclude was served on May 24, 2017, via email directed to
`
`counsel of record for the Petitioners at the following:
`
`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori A. Gordon
`lgordon-PTAB@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`John C. Phillips
`CBM41919-0013CP1@fr.com
`
`PTAB@skgf.com
`
`
`
`
`
`/Cole B. Richter/
`Cole B. Richter,
`Counsel for Patent Owner,
`Reg. No. 65,398
`
`
`
`Dated: May 24, 2017
`
`By:
`
`
`
`
`
`
`
`
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