`
`
`
`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
`_________
`
`CBM2016–00054
`Patent 7,693,768
`___________________
`
`
`PETITIONERS’ MOTION TO EXCLUDE
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313–1450
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`CBM2016-00054
`Patent 7,693,768
`
`I.
`
`Introduction ....................................................................................................... 1
`
`II. Argument .......................................................................................................... 2
`
`A.
`
`Bear, Olsen, and Abilock Declarations: Exhibits 2168, 2174, 2178 .... 2
`
`B. District Court Transcripts: Exhibits 2211, 2220, 2222, 2224, 2225,
`2228, 2232, 2247, 2251, 2273-2276, 2286, 2288, and 2292-2296 ....... 3
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`The 35 Traders’ Declarations: Exhibit 2223 ......................................... 4
`
`Emails from District Court Litigation: Exhibits 2210, 2240–2246,
`2250, 2252–2272, 2277, 2532, 2533 ..................................................... 6
`
`Brumfield Sketch, Animations, and Internet Archive Printout:
`Exhibits 2212, 2213, 2214, 2405, 2535 ................................................ 7
`
`eSpeed/CQG Jury Verdict Forms: Exhibits 2034 and 2278 ................. 8
`
`Confidential Declaration of Christopher Thomas: Exhibit 2169 ........10
`
`III. Conclusion ......................................................................................................14
`
`
`
`
`
`- i -
`
`
`
`
`
`CBM2016-00054
`Patent 7,693,768
`
`I.
`
`Introduction
`
`TT has known for more than a year that much of the evidence submitted
`
`with its Patent Owner Response (“POR”) suffers from significant admissibility
`
`problems. (See Paper 38, 2-4 in CBM2015-00182 (Board denying TT’s request for
`
`a blanket waiver of FRE 802 and FRE 901 so that TT could rely on a “large
`
`volume of documents produced in previous district court cases”).) Despite this
`
`knowledge, TT elected not to address any of the deficiencies. Instead, TT dumps
`
`into the record of this proceeding hundreds of pages of the same documents (and
`
`more) from the district court cases without regard to their admissibility. But like
`
`the ’182 proceeding, this proceeding is governed by the Federal Rules of Evidence,
`
`which set fair boundaries on the admissibility of evidence. Because TT ignores
`
`those rules, its evidence should be stricken as explained below.
`
`A significant number TT’s documents violate the prohibition on hearsay
`
`(FRE 802), and TT has done nothing to show that any of the well-established
`
`exceptions to hearsay apply to its evidence. Rather, TT disregards this rule entirely
`
`by introducing hearsay statements from dozens of individuals in an effort to defend
`
`the patentability of its claims.
`
`A significant number of TT’s documents also fail to meet the basic
`
`requirements of authenticity required by FRE 901. Despite Petitioners’ timely
`
`objection, TT offered no competent evidence that cures this objection, leaving the
`
`
`
`- 1 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`Board and Petitioners with no basis to gauge whether the documents are genuine.
`
`
`
`TT’s evidence also ignores the proper boundaries of expert witness
`
`testimony in contravention of FRE 702. Significant portions of Thomas’
`
`declaration (Ex. 2169) are not his opinions. Rather, he improperly offers factual
`
`testimony based not upon his own perception, but upon his review of district court
`
`depositions and trial transcripts. That underlying evidence is inadmissible because
`
`TT may not use Thomas “simply as a conduit for introducing hearsay under the
`
`guise that the testifying expert used the hearsay as the basis of his testimony.”
`
`Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 136 (2d Cir. 2013) (citation
`
`omitted). Thus, Thomas’ testimony is improper and should be excluded. See, e.g.,
`
`United States v. Dukagjini, 326 F.3d 45, 58 (2d Cir. 2003).
`
`Accordingly, Petitioners file this Motion pursuant to 37 C.F.R. § 42.64(c)
`
`and in accordance with the Board’s October 18, 2016 Order setting Due Date 4.
`
`(Paper 11 at 5, 8.)
`
`II. Argument
`A. Bear, Olsen, and Abilock Declarations: Exhibits 2168, 2174, 2178
`The Board should exclude Exhibits 2168, 2174, and 2178 because they are
`
`not relevant. FRE 401. Each declarant testified that he did not consider the ’768
`
`patent from the perspective of a POSITA when forming his opinions. (Ex. 1085,
`
`43:20-44:3; Ex. 1086, 31:17-32:16; Ex. 1069, 27:14-28:7.) Because a patent must
`
`
`
`- 2 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`be analyzed from the perspective a POSITA, their testimony does not tend to make
`
`
`
`any facts in this proceeding more or less probable, and is therefore irrelevant.
`
`Petitioners timely objected to these exhibits for lack of relevance. (Paper 25 at 7.)
`
`B. District Court Transcripts: Exhibits 2211, 2220, 2222, 2224, 2225,
`2228, 2232, 2247, 2251, 2273-2276, 2286, 2288, and 2292-2296
`The Board should exclude Exhibits 2211, 2220, 2222, 2224, 2225, 2228,
`
`2232, 2247, 2251, 2273-2276, 2286, 2288, and 2292-2296 (“Transcripts”) because
`
`they are hearsay to which no valid exception applies. TT cites most of these
`
`exhibits in its POR. (See Paper 21 at 39, 40, 42, 46-47, 50, 52-55, 57, 60, 63-67,
`
`72, 76-77, 84.) As discussed further in section II.F infra, TT’s technical expert
`
`Thomas also relies upon these exhibits as alleged support for the assertions in his
`
`declaration (Ex. 2169) regarding, for example, the background of the claimed
`
`invention and alleged secondary considerations. Petitioners timely objected to
`
`these exhibits as hearsay. (Paper 25 at 9.)
`
`The Transcripts purport to be excerpts of trial or deposition transcripts from
`
`district court proceedings involving third parties. The statements within are hearsay
`
`as none were made while testifying for the current proceeding and all are being
`
`offered for the truth of the matters asserted. FRE 801. No proper hearsay exception
`
`applies to the Transcripts. For example, TT has not shown that the witnesses are
`
`unavailable (FRE 804), nor has TT shown that any specific exception applies under
`
`FRE 803. Likewise, the residual exception does not apply here as this case is not
`
`
`
`- 3 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`“exceptional.” See Conoco Inc. v. Dep’t of Energy, 99 F.3d 387, 392 (Fed. Cir.
`
`
`
`1996) (“The two residual hearsay exceptions . . . were meant to be reserved for
`
`exceptional cases.”). Nor can TT credibly argue that the Transcripts are more
`
`probative than any other evidence it could have obtained through reasonable
`
`efforts. See FRE 807. Indeed, TT could have obtained declarations from these
`
`witnesses or it could have sought to compel the depositions of these witnesses. TT
`
`has made no effort to cure Petitioners’ evidentiary objections and, accordingly, the
`
`Board should exclude the Transcripts.
`
`C. The 35 Traders’ Declarations: Exhibit 2223
` The Board should exclude the exhibit that purports to contain declarations
`
`from 35 individuals in the electronic trading industry (Exhibit 22231) (“Traders’
`
`Declarations”); there is no evidence of record that these exhibits are authentic and
`
`each is hearsay to which no exception applies.
`
`TT offers the Traders’ Declarations in support of its assertions regarding
`
`alleged secondary considerations. (See Paper 21 at 40-41, 48, 51, 61, 63, 69-71.)
`
`Portions of these exhibits are also discussed by TT’s expert. (Ex. 2169, ¶¶ 106,
`
`1 Exhibit 2223 includes Exhibits 2210, 2216, 2218, 2219, 2221, 2227, 2229,
`
`and 2239, which TT separately submitted. The Board should exclude these
`
`separately submitted declarations for the same reasons discussed above regarding
`
`Exhibit 2223.
`
`
`
`- 4 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`108, 128, 131.) The exhibits contain, for example, statements by individuals
`
`
`
`regarding their opinions concerning TT’s alleged commercial embodiments. (See
`
`Ex. 2223.) Petitioners objected to each of these exhibits as lacking authentication
`
`and as hearsay. (Paper 25 at 9-10.)
`
`The Board should exclude the Traders’ Declarations for lack of
`
`authentication because TT has offered no evidence that each exhibit is what it
`
`purports to be. FRE 901. In fact, at least one of the exhibits contained within
`
`Exhibit 2223 is anything but a “declaration.”2 TT chose to forego filing any
`
`supplemental evidence to cure Petitioners’ authenticity objections to these exhibits.
`
`Accordingly, the Board should exclude the declarations for lack of authentication.
`
`In addition, each purported declaration is hearsay as none of the statements
`
`within were made while testifying for the current proceeding and all are being
`
`offered for the truth of the matters asserted. FRE 801. The Traders’ Declarations
`
`are not excluded from the hearsay rule because none are being used for a purpose
`
`permitted under FRE 801(d). Likewise, TT has not shown that any of the
`
`declarants are unavailable. FRE 804. Nor has TT shown that any specific exception
`
`under FRE 803 or the residual exception under FRE 807 applies here. Indeed, TT
`
`2 Exhibit 2210 (also contained within Exhibit 2223) purports to be a
`
`declaration of Mr. Daniel Durkin. Exhibit 2210 actually appears to be an email
`
`between Inventor Mr. Harris Brumfield and Mr. Durkin.
`
`
`
`- 5 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`cannot credibly argue that 2004 declaration testimony has equivalent
`
`
`
`circumstantial guarantees of trustworthiness as that of testimony from these same
`
`declarants if Petitioners had an opportunity here for vigorous cross examination.
`
`TT has not shown that this is an “exceptional case” under FRE 807. See Conoco,
`
`99 F.3d at 392. Accordingly, the Board should exclude the declarations as hearsay.
`
`D. Emails from District Court Litigation: Exhibits 2210, 2240–2246,
`2250, 2252–2272, 2277, 2532, 2533
`
`The Board should exclude Exhibits 2210, 2240-2246, 2250, 2252-2272,
`
`2277, 2532, and 2533 (“Emails”) for lack of authenticity, as hearsay to which no
`
`exception applies, or both. The Emails each purports to be an email (or a
`
`demonstrative depicting an email) that is allegedly from employees of TT or third
`
`parties. Both TT and its technical expert use the Emails here as support for their
`
`assertions regarding alleged secondary considerations. (See Paper 21 at 38, 42, 46,
`
`55, 58, 61, 65-66; see also Ex. 2169 at ¶¶ 104, 113, 125, 127, 129, 134, 138-140.)
`
`Petitioners timely objected to the Emails on the basis of, among other things,
`
`authenticity and hearsay. (Paper 25 at 9-10.)
`
`The Board should exclude Exhibits 2210, 2240-2246, 2250, 2252-2272,
`
`2277, and 2532-2533 for lack of authentication. FRE 901.Petitioners timely
`
`objected to the authentication of these exhibits, but TT failed provide evidence that
`
`these exhibits are true and correct copies of what TT purports them to be.
`
`Each of the Emails also constitutes hearsay as each is being offered for the
`
`
`
`- 6 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`truth of the matters asserted. FRE 801. TT has not shown that there is a non-
`
`
`
`hearsay purpose for any of the Emails. See, e.g., FRE 801(d). Nor has TT shown
`
`that the witnesses whose statements it relies upon are unavailable. FRE 804. It also
`
`has not shown that any specific exception under FRE 803 or the residual exception
`
`under FRE 807 applies. Indeed, TT cannot credibly argue that the Emails have
`
`equivalent circumstantial guarantees of trustworthiness or that the other elements
`
`of FRE 807 are met such that the Board should consider this case “exceptional.”
`
`See, e.g., Conoco Inc., 99 F.3d at 392. Accordingly, the Board should exclude the
`
`Emails as hearsay.
`
`E.
`
`Brumfield Sketch, Animations, and Internet Archive Printout:
`Exhibits 2212, 2213, 2214, 2405, 2535
`
`The Board should exclude the sketch, animations, and the internet archive
`
`printout for lack of authenticity. The Board should further exclude the sketch and
`
`animations as hearsay to which no exception applies. Exhibit 2213 purports to
`
`depict a 1998 sketch of Mr. Brumfield’s alleged invention. Exhibits 2212, 2214,
`
`and 2535 each purport to be video animations of unknown provenance. And
`
`Exhibit 2405 purports to be a printout of TT’s website generated by the Internet
`
`Archive WayBackMachine. TT cites to these exhibits in its POR. (See Paper 21 at
`
`7-8, 46 (Ex. 2212); 46-47 (Ex. 2213); 7-9, 46, 48, 82 (Ex. 2214); 7, 82 (Ex. 2535);
`
`42 (Ex. 2405).) TT’s expert improperly uses the animations as evidence of how
`
`TT’s product and some prior art allegedly operate. (See Ex. 2169 at ¶ 85 (Ex.
`
`
`
`- 7 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`2212); ¶ 87 (Ex. 2213), ¶ 90 (Ex. 2214).) Thomas also improperly relies on the
`
`
`
`unauthenticated internet archive printout as evidence of alleged secondary
`
`considerations. (See Ex. 2169 at ¶ 124.) Petitioners timely objected to each of these
`
`exhibits. (Paper 25 at 7-11.)
`
`TT has offered no evidence to demonstrate that Exhibits 2212-2214, 2535,
`
`and 2405 are what TT and its expert purport them to be. FRE 901. Accordingly,
`
`the Board should exclude these exhibits for lack of authentication.
`
`Moreover, these exhibits are also hearsay for which no exception applies.
`
`Ex. 2212 is purportedly a sketch prepared by inventor Mr. Brumfield. To the extent
`
`TT offers Ex. 2212 for evidence of whatever it purports to illustrate, it should be
`
`excluded. Exhibits 2213, 2214, and 2535 purport to be computer-generated
`
`cartoons showing how actual software products operate. TT offers these exhibits as
`
`evidence of the alleged benefits of the invention and problems associated with the
`
`prior art. (Paper 21 at 7-9, 46-48, 82.) TT did not respond to any of Petitioners’
`
`timely objections, so there is no evidence showing who prepared these cartoons or
`
`under whose direction. Thus, each clip was made by unidentified animators who
`
`are not testifying in this proceeding, and TT is using each clip to prove the truth of
`
`the matters asserted. Therefore, they are hearsay and should be excluded. FRE 801.
`
`F.
`
`eSpeed/CQG Jury Verdict Forms: Exhibits 2034 and 2278
`The Board should exclude Exhibits 2034 and 2278, which purport to be jury
`
`
`
`- 8 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`verdict forms associated with two district court proceedings involving TT and third
`
`
`
`parties. These exhibits are inadmissible because each is irrelevant and hearsay.
`
`Petitioners timely objected to Exhibits 2034 and 2278. (Paper 25 at 7, 9.)
`
`TT relies on Ex. 2278 in support of its assertion that third party “CQG and
`
`its experts did not believe that the claimed invention was obvious.” (See Paper 21
`
`at 66.) TT’s technical expert Thomas relies on Ex. 2278 in support of his assertion
`
`that others copied TT’s alleged commercial embodiment. (See Ex. 2169 at ¶ 143.)
`
`Likewise, while TT does not directly rely upon Ex. 2034 in its POR, Thomas relies
`
`on Exhibit 2034 as evidence of alleged copying by others. (See Ex. 2169 at ¶ 135.)
`
`These exhibits do not tend to make any facts in this proceeding more or less
`
`probable. FRE 401. Indeed, TT admits that Ex. 2278 does not even address the
`
`’768 patent at issue in this proceeding (nor does Ex. 2034). (See Paper 21 at 65 n.8,
`
`66.) Moreover, the eSpeed and CQG jury’s determination is of no consequence to
`
`the Board’s determination of whether copying of the claimed invention exists. See
`
`Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010) (citation omitted)
`
`(“Not every competing product that arguably falls within the scope of a patent is
`
`evidence of copying; otherwise, ‘every infringement suit would automatically
`
`confirm the nonobviousness of the patent.’”).
`
`Because irrelevant evidence is not admissible, the Board should exclude
`
`Exhibits 2034 and 2278. FRE 402. Moreover, Exhibits 2034 and 2278 are
`
`
`
`- 9 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`impermissibly hearsay and do not meet any of the conditions set forth in FRE
`
`
`
`801(d) such that they could be deemed non-hearsay. Accordingly, the Board
`
`should exclude them from the record.
`
`G. Confidential Declaration of Christopher Thomas: Exhibit 2169
`The Board should exclude Exhibit 2169. Numerous portions of the
`
`Confidential Declaration of Christopher Thomas (Exhibit 2169), TT’s expert,
`
`exceed the proper boundaries of expert testimony and should be stricken from the
`
`record. TT relies on Thomas’s declaration testimony throughout its POR. (See
`
`Paper 21 at 5-7, 9, 11-14, 16, 26, 28-31, 34-42, 46-57, 59-66, 68-77, 81-82, 84-85,
`
`87, 89, 91.) Petitioners timely objected to Exhibit 2169 as inadmissible hearsay and
`
`improper expert testimony in violation of at least FRE 701, 702 and 703. (Paper 25
`
`at 8-9.) If not excluded in its entirety, the Board should exclude at least the
`
`portions of Exhibit 2169—including paragraphs ¶¶ 77, 85-88, 91-94, 96-99, 103-
`
`114, 128-130, 133-136, 138-140, 142-143, 153-155, 178, and 181—that purport to
`
`provide testimony concerning the conception of the invention, the problem
`
`purportedly solved by the inventor, and alleged secondary considerations.
`
`Although Thomas is offered as an “expert witness,” substantial portions of
`
`his testimony are not expert opinions. Rather, Thomas merely repeats, summarizes,
`
`and/or characterizes various statements made by declarants outside of this
`
`proceeding. This is not testimony based on “scientific, technical, or other
`
`
`
`- 10 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`specialized knowledge” as contemplated by Rule 702. Rather, TT is impermissibly
`
`
`
`using Thomas “as a conduit for introducing hearsay under the guise that the
`
`testifying expert used the hearsay as the basis of his testimony.” Marvel
`
`Characters, 726 F.3d at 136 (citation omitted).
`
`The Federal Rules contemplate that an expert’s testimony will be based on
`
`three sources: (1) first hand observation by the expert; (2) presentation at trial; or
`
`(3) the kinds of facts or data that that an expert in the field would reasonably rely
`
`on in forming an opinion. FRE 703, 1972 Advisory Committee Notes. None of
`
`these sources apply to the testimony set forth below. Rather, Thomas offers
`
`testimony based upon evidence presented at a different trial, before a different
`
`tribunal, involving different parties. Neither the Federal Rules nor the Board’s rules
`
`permit such testimony from an expert.
`
`Examples of Thomas’s improper “opinion” testimony include:
`
`• at ¶ 77, explaining and characterizing a third party’s alleged reaction to
`
`TT’s alleged commercial embodiment;
`
`• at ¶¶ 85-88, describing and characterizing what motivated the inventors
`
`to develop the claimed subject matter;
`
`• at ¶¶ 91-94, describing the alleged development of a commercial
`
`embodiment;
`
`• at ¶¶ 96-97, describing what one inventor “believed” the benefits of the
`
`
`
`- 11 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`invention to be and the inventor’s purported efforts to commercialize the
`
`
`
`alleged invention;
`
`• at ¶¶ 98-99, offering testimony regarding the inventor’s state of mind,
`
`including that the inventor’s “belief in the potential of the invention was
`
`justified;”
`
`• at ¶¶ 103-104, summarizing and providing direct quotes of third parties to
`
`characterize the alleged initial skepticism of TT’s alleged commercial
`
`embodiment as “significant”;
`
`• at ¶¶ 105-106, characterizing nearly 40 direct quotes from third parties
`
`concerning the alleged commercial embodiment as “widespread praise”;
`
`• at ¶107, summarizing statements from a book;
`
`• at ¶ 108, describing and characterizing what some third parties
`
`considered “unexpected” about the results of the claimed subject matter;
`
`• ¶¶ 109–111, quoting and paraphrasing what one inventor and other third
`
`parties said about the value of the alleged commercial embodiment;
`
`• at ¶¶ 112-113, directly quoting and describing statements of TT
`
`employees and TradeStation employees related to alleged commercial
`
`success;
`
`• at ¶¶ 114, 128–130, 133-136, 138–140, 142-143, providing images of
`
`what purport to be demonstrative exhibits from the eSpeed trial regarding
`
`
`
`- 12 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`alleged copying, directly quoting and paraphrasing what third parties
`
`
`
`have said concerning copying, and characterizing third party actions as
`
`“widespread copying”;
`
`• at ¶¶ 153–54, repeating and paraphrasing deposition testimony of third
`
`parties regarding their beliefs concerning the obvious nature of the
`
`alleged invention;
`
`• at ¶¶ 153-155, characterizing direct quotes of witnesses’ testimony from
`
`the eSpeed district court proceedings as evidence that others in the
`
`industry attempted but failed to develop improved GUI tools;
`
`• at ¶¶ 178, 181, quoting and paraphrasing how other experts from the
`
`eSpeed and CQG cases characterized the alleged invention.
`
`All of the paragraphs discussed above summarize, characterize, and/or quote
`
`from transcripts, exhibits, and declarations from TT’s prior litigations. (See, e.g.,
`
`Ex. 2169 at ¶ 77 (Ex. 2210); ¶ 85 (Ex. 2211); ¶¶ 86-88 (Ex. 2213); ¶ 91 (Exs. 2211,
`
`2216); ¶¶ 92–94 (Exs. 2211, 2218, 2219); ¶ 181 (Exs. 2292, 2293, 2294, 2295,
`
`2296).) This is not offering expert opinions. Instead, Thomas is improperly acting
`
`as a “mouthpiece” for declarants who TT has shielded from cross-examination.
`
`See, e.g., Loeffel Steel Prod., Inc. v. Delta Brands, Inc., 387 F. Supp. 2d 794, 808
`
`(N.D. Ill. 2005) (“Rule 703 was never intended to allow oblique evasions of the
`
`hearsay rule.”).
`
`
`
`- 13 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`While an expert may generally rely on hearsay, expert testimony cannot be
`
`
`
`used as a vehicle to evade the hearsay requirement. See Dukagjini, 326 F.3d at 57–
`
`59. Rule 702 requires that expert testimony be “based on sufficient facts or data” to
`
`be admissible. FRE 702(b). By simply repeating or summarizing the hearsay
`
`testimony discussed, Thomas has crossed the line from permissibly relying on
`
`hearsay to form his expert opinion to impermissibly being a mere conduit for
`
`hearsay. Dukagjini, 326 F.3d at 57–59; see also Lakah v. UBS AG, 996 F. Supp. 2d
`
`250, 259 (S.D.N.Y. 2014). The Board should therefore exclude at least the rank
`
`hearsay portions of Exhibit 2169, Paragraphs 77, 85-88, 91-94, 96-99, 103-114,
`
`128-130, 133-136, 138-140, 142-143, 153-155, 178, and 181.
`
`III. Conclusion
`For the reasons set forth above, Exhibits 2034, 2168, 2174, 2178, 2210-
`
`2214, 2216, 2218-2225, 2227-2229, 2232, 2239-2246, 2247, 2250-2276, 2277-
`
`2278, 2286, 2288, 2292-2296, 2405, 2532-2533, and 2535 should be excluded. In
`
`addition, the Thomas Declaration (Ex. 2169) should be excluded. If not excluded
`
`in its entirety, at least Paragraphs 77, 85-88, 91-94, 96-99, 103-114, 128-130, 133-
`
`136, 138-140, 142-143, 153-155, 178, and 181 of the Thomas Declaration (Ex.
`
`2169) should be excluded.
`
`
`
`
`
`
`
`- 14 -
`
`
`
`Date: May 24, 2017
`
`
`
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`CBM2016-00054
`Patent 7,693,768
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`
`/Richard M. Bemben/
`
`
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
`
`
`- 15 -
`
`
`
`CBM2016-00054
`Patent 7,693,768
`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that the foregoing PETITIONERS’
`
`MOTION TO EXCLUDE, Updated Exhibit List, and Exhibits 1085-1086 were
`
`served electronically via e–mail on May 24, 2017, in their entireties on the
`
`following attorneys for Patent Owner:
`
`
`
`
`
`Michael D. Gannon, Leif R. Sigmond, Jr.,
`Jennifer M. Kurcz, Cole B. Richter
`MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`gannon@mbhb.com
`sigmond@mbhb.com
`kurcz@mbhb.com
`richter@mbhb.com
`
`Steven F. Borsand, Jay Q. Knobloch
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`tt–patent–cbm@tradingtechnologies.com
`jay.knobloch@tradingtechnologies.com
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`
`/Richard M. Bemben/
`
`
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
`
`Date: May 24, 2017
`
`
`
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`
`
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
