Paper No. ______
`Filed: June 14, 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 REPLY
`IN SUPPORT OF ITS MOTION TO EXCLUDE
`
`
`
`
`
`
`
`
`Filed: June 14, 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 REPLY
`IN SUPPORT OF ITS MOTION TO EXCLUDE
`
`
`
`
`
`
`
`
`
`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`I.
`
`TSE EXHIBITS 1016, 1017, AND 1019 SHOULD BE EXCLUDED AS
`UNAUTHENTICATED AND/OR INADMISSIBLE HEARSAY
`
`Petitioners argue that TT conceded that the Kawashima deposition transcript
`
`was admissible. Opp. at 6. But TT did not concede that the 2005 Kawashima
`
`deposition transcript was admissible, and TT did not concede that the deposition
`
`transcript authenticates Exhibit 1016 (“TSE”). E.g., CBM2016-00179, Paper 114.
`
`Rather, in other CBM proceedings, TT set forth an alternative argument that
`
`applied for that CBM proceeding: 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.”).
`
`Here, the 2005 Kawashima testimony does not qualify under the residual
`
`hearsay exception because it is not more probative that any other evidence
`
`Petitioner could have obtained through reasonable efforts. FRE 807(a)(2).
`
`Petitioners make this argument. Opp. at 7. Yet in the very next paragraph they
`
`admit that Kawashima made himself available for cross-examination in these CBM
`
`proceedings. Id. Indeed, Petitioners examined Mr. Kawashima at this deposition.
`
`Ex. 2163, pp. 44-60. Further, Petitioners’ counsel even met with Mr. Kawashima
`
`prior to this deposition. Id. at 11:18 – 12:2, 13:23-25 (“Q: Now, yesterday, you
`
`1
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`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`met with Ms. Gordon and Ms. Morgan for about how long? A: Three hours or
`
`so.”).
`
`Thus, contrary to Petitioners’ argument, Petitioners had ample opportunity to
`
`obtain more probative evidence. Petitioners could have obtained a declaration
`
`from Kawashima during the time they privately met with him prior to his
`
`deposition. They also could have elicited testimony at his deposition addressing
`
`the deficiencies of the 2005 Kawashima testimony. They did not. As such, the
`
`2005 Kawashima transcript is not more probative than other evidence they could
`
`have obtained through reasonable efforts. The 2005 Kawashima transcript thus
`
`does not qualify for the residual hearsay exception and should be excluded as
`
`hearsay.
`
`Petitioners claim that “TT does not seek to exclude the 2005 Kawashima
`
`deposition transcript (Exhibit 1019) . . . .” Opp. at 6. Yet, TT’s motion to exclude
`
`demonstrates that the 2005 Kawashima transcript is inadmissible hearsay, which,
`
`among other reasons, renders it insufficient to authenticate TSE. Thus, the Board
`
`should not rely on the 2005 Kawashima transcript for any reason, and should thus
`
`exclude it.
`
`Even if the Kawashima deposition transcript is admitted, it does not
`
`authenticate TSE. Indeed, this transcript is insufficient to establish that Exhibit
`
`1016 is the same document allegedly distributed in 1998 by the Tokyo Stock
`
`2
`
`
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`CBM2016-00054
`U.S. Patent 7,693,768
`
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`Exchange. As explained in TT’s motion, the 2005 Kawashima transcript raises
`
`more doubt that it resolves. Mot. at 3-5. Petitioners argue (incorrectly) that TT
`
`does not point to any evidence suggesting that Exhibit 1016 is not the 1998 manual
`
`issued by the Tokyo Stock Exchange. Opp. at 1. But Petitioners’ premise is
`
`flawed. The correct question is whether Exhibit 1016 is the same manual that
`
`Kawashima allegedly distributed in 1998 to TSE participants. The 2005
`
`Kawashima testimony (Ex. 1019) does not establish that it is.
`
`Specifically, TT highlighted portions of Kawashima that demonstrate that
`
`Kawashima was unable to authenticate TSE in a way that establishes that the TSE
`
`manual was the same document allegedly distributed in 1998 by the Tokyo Stock
`
`Exchange. Mot. at 3-4 (citing Ex. 1019, pp. 97-98 (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); and citing Ex. 1019, p. 99 (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.)).
`
`Petitioners also argue that the document is authenticated under FRE
`
`901(b)(4) because it has a distinctive layout and has illustrations as well as Bates
`
`3
`
`
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`CBM2016-00054
`U.S. Patent 7,693,768
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`numbering. Opp. at 4. But such characteristics of the purported TSE document do
`
`nothing to establish that the document is the same manual allegedly distributed by
`
`the Tokyo Stock Exchange in 1998. And these characteristics do nothing to
`
`establish that the document was publicly accessible. Rather, these characteristics,
`
`at best, show that the purported 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 was the same manual allegedly
`
`distributed by the Tokyo Stock Exchange in 1998.
`
`The 2016 deposition transcript does not include testimony putting to rest the
`
`deficiencies of the 2005 deposition. Instead, it once again 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. Further, as explained
`
`in TT’s motion, the 2016 deposition transcript also proves Mr. Kawashima’s bias.
`
`Mot. at 5. As such, the 2016 Kawashima testimony should be given no weight.
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`Finally, the TSE translation (Ex. 1017) should be excluded under FRE 106
`
`and 403 because it is incomplete and misleading. Petitioner does not dispute that it
`
`copied TT’s own translation of TSE’s Chapter 7 for an inaccurate translation.
`
`Opp. at 11; compare Ex. 1017, 91-120 with Ex. 2178, pp. 15-44. Indeed,
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`Petitioners’ version omits two translator’s notes from TT’s original translation.
`
`Ex. 2178, 39-40. Given this, FRE 106 and 403 dictate that, at a minimum, pages
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`4
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`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`91-120 (i.e., Chapter 7) of Ex. 1017 should be excluded in favor of TT’s version
`
`that includes the translator’s notes (Ex. 2178, pp. 15-44). Admitting a version of
`
`Exhibit 1017 without the translator’s notes would be unfairly prejudicial because it
`
`is an incomplete, and therefore inaccurate, version of the primary reference relied
`
`on by Petitioners as prior art in this proceeding. This substantially outweighs
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`Exhibit 1017’s probative effect and Exhibit 1017 should be excluded under FRE
`
`403.
`
`II. CONCLUSION
`
`In view of Petitioners’ deficient evidence, TSE (Exhibits 1016, 1017) stands
`
`unauthenticated. TSE should thus be excluded. The English translation of TSE
`
`(Exhibit 1017) is incomplete and its probative value is substantially outweighed by
`
`unfair prejudice. It should be excluded for this reason as well. Moreover, the 2005
`
`Kawashima deposition transcript (Exhibit 1019) is inadmissible hearsay, not
`
`subject to any exception. It is insufficient to authenticate TSE on its own merits
`
`and, separately because it is inadmissible hearsay. It should thus be excluded as
`
`well.
`
`
`Dated: June 14, 2017
`
`By:
`
`
`
`5
`
`Respectfully submitted,
`
`
`
`
`
`/Cole B. Richter/
`Cole B. Richter,
`Counsel for Patent Owner
`Reg. No. 65,398
`
`
`
`
`
`CBM2016-00054
`U.S. Patent 7,693,768
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing Patent
`
`Owner’s Reply in Support of its Motion to Exclude was served on June 14, 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: June 14, 2017
`
`By:
`
`
`
`
`
`
`
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