CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
`1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`--------------------------------------------------x
`IBG LLC and INTERACTIVE BROKERS LLC,
`
` Petitioner,
` vs.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
` Patent Owner.
`
`--------------------------------------------------x
` Case CBM2016-00009; Patent 7,685,055 B2
`
` TELEPHONE CONFERENCE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` HONORABLE SALLY C. MEDLEY
` HONORABLE MEREDITH C. PETRAVICK
` HONORABLE JEREMY M. PLENZLER
` May 11, 2016
` 2:00 p.m.
`
`Reported by: Carrie LaMontagne, CSR
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`
`www hendersonlegalservices.com
`
`
`
`Page 1 of 63
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`IBG 1087
`IBG v. TT
`CBM2016-00054
`
`
`Conference Call
`May 11, 2016
`
`1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`--------------------------------------------------x
`IBG LLC and INTERACTIVE BROKERS LLC,
`
` Petitioner,
` vs.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
` Patent Owner.
`
`--------------------------------------------------x
` Case CBM2016-00009; Patent 7,685,055 B2
`
` TELEPHONE CONFERENCE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` HONORABLE SALLY C. MEDLEY
` HONORABLE MEREDITH C. PETRAVICK
` HONORABLE JEREMY M. PLENZLER
` May 11, 2016
` 2:00 p.m.
`
`Reported by: Carrie LaMontagne, CSR
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`
`www hendersonlegalservices.com
`
`
`
`Page 1 of 63
`
`IBG 1087
`IBG v. TT
`CBM2016-00054
`
`
`
`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
`2
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` --------------------------------------------------x
`IBG LLC, INTERACTIVE BROKERS LLC, TRADESTATION GROUP,
`INC., TRADESTATION SECURITIES, INC., TRADESTATION
`TECHNOLOGIES, INC., and IBFX, INC.,
`
` Petitioner,
` vs.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
` Patent Owner.
`
`--------------------------------------------------x
` Case CBM2015-00182; Patent 6,772,132 B1
` Case CBM2015-00181; Patent 7,676,411 B2
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`202-220-4158
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`www hendersonlegalservices.com
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`
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`Page 2 of 63
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`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
`3
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` --------------------------------------------------x
`TRADESTATION GROUP, INC. and TRADESTATION SECURITIES,
`INC.,
`
` Petitioner,
` vs.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
` Patent Owner.
`
`--------------------------------------------------x
` Case CBM2015-00161; Patent 6,766,304 B2
` Case CBM2015-00172; Patent 7,783,556 B1
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`202-220-4158
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`www hendersonlegalservices.com
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`Page 3 of 63
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`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
`4
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` --------------------------------------------------x
`IBG LLC, INTERACTIVE BROKERS LLC, TRADESTATION GROUP,
`INC., TRADESTATION SECURITIES, INC., TRADESTATION
`TECHNOLOGIES, INC., IBFX, INC., CQG, INC., and CQGT,
`LLC,
`
` Petitioner,
` vs.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
` Patent Owner.
`
`--------------------------------------------------x
` Case CBM2015-00179; Patent 7,533,056 B2
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`202-220-4158
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`www hendersonlegalservices.com
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`Page 4 of 63
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`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
`5
`
`APPEARANCES:
`FOR THE PATENT OWNERS:
` JOSHUA L. GOLDBERG, ESQ.
` ERIKA H. ARNER, ESQ.
` FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
` 11955 Freedom Drive
` Reston, Virgina 20190
` (571) 203-2700
` and
` STEVE BORSAND, ESQ.
` TRADING TECHNOLOGIES, INC.
` 222 South Riverside Plaza, Suite 100
` Chicago, Illinois 60606
` (312) 476-1018
`FOR THE PETITIONERS
` LORI A. GORDON, ESQ.
` ROBERT E. SOKOHL, ESQ
` STERNE, KESSLER, GOLDSTEIN & FOX, P.L.L.C.
` 1100 New York Avenue, NW, Suite 600
` Washington, DC 20055
` (202) 772-8862
` and
` ADAM KESSEL, ESQ.
` FISH & RICHARDSON
` 1 Marina Park Drive
` Boston, Massachusetts 02210
` (617) 368-2180
` and
` MICHAEL ROSATO, ESQ.
` WILSON SONSINI GOODRICH & ROSATI
` 701 Fifth Avenue, Suite 5100
` Seattle, Washington 98104
` (206) 883-2529
` and
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`202-220-4158
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`www hendersonlegalservices.com
`
`
`
`Page 5 of 63
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`
`
`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
`6
`
`APPEARANCES CONTINUED:
` MATTHEW ARGENTI, ESQ.
` WILSON SONSINI GOODRICH & ROSATI
` 650 Page Mill Road
` Palo Alto, California 94304
` (650) 354-5145
` and
` JOHN PHILLIPS, ESQ.
` FISH & RICHARDSON
` 12390 El Camino Real
` San Diego, California 92130
` (858) 678-4304
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`202-220-4158
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`
`www hendersonlegalservices.com
`
`
`
`Page 6 of 63
`
`
`
`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
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` JUDGE MEDLEY: Good afternoon. This is
`Judge Medley. I have on the line with me Judge
`Petravick and Judge Plenzler.
` This is a conference call regarding patent
`numbers 161, 179, 181, 182, and 009.
` Could I know who's on the line for the Patent
`Owner?
` MR. GOLDBERG: Good afternoon, your Honor.
`This is Josh Goldberg for Patent Owner. I also have
`with me Erika Arner and Steve Borsand from Trading
`Technologies.
` JUDGE MEDLEY: And for Petitioner in the
`161 case, is there counsel on the line for Petitioner
`in the 161 case?
` MS. GORDON: Your Honor, Petitioner in the
`161 case, we have John Phillips on the line as well
`as Rob Sokohl.
` MR. KESSEL: As well as Adam Kessel.
` MS. GORDON: I apologize, Adam. And
`Mike Rosato.
` MR. ARGENTI: And Matt Argenti as well.
` JUDGE MEDLEY: And for the 179 case?
` MS. GORDON: For the 179 case, your Honor,
`we have Lori Gordon and Rob Sokohl for IBG and
`Tradestation.
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`
`www hendersonlegalservices.com
`
`
`
`Page 7 of 63
`
`
`
`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
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` JUDGE MEDLEY: And the 181 case?
` MS. GORDON: The same. And I think believe
`Adam Kessel has been added for that case as well.
` JUDGE MEDLEY: Okay. Is that the same for
`the 182?
` MS. GORDON: Yes, your Honor.
` JUDGE MEDLEY: And the 009?
` MS. GORDON: Yes.
` JUDGE MEDLEY: All right. We have a number
`of items to discuss today.
` Patent Owner, you sent us an e-mail listing a
`certain number of items. And the first issue I'd
`like to hear about is the two items about the waiver
`of the Federal Rules of Evidence.
` MR. GOLDBERG: Thank you, your Honor.
`Before I get into that, I want to note we do have a
`court reporter on the line, the Board had requested.
` JUDGE MEDLEY: Thank you. And you'll file
`the transcript?
` MR. GOLDBERG: Yes, we'll file the
`transcript. As you correctly recognized, we have a
`series of points today and they're going to generally
`fall into two buckets, issues relating to evidence
`that we actually have from earlier proceedings and
`then issues related to evidence in ongoing
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`
`www hendersonlegalservices.com
`
`
`
`Page 8 of 63
`
`
`
`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
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`proceedings. And I'll start with the first bucket
`for your request, the waivers of the Federal Rules of
`Evidence issues.
` In order to understand kind of why we're seeking
`this and what's at issue here, I want to ask my
`colleague Steve Borsand from Trading Technologies to
`give background on what this evidence is that
`actually is at issue here.
` JUDGE MEDLEY: Okay.
` MR. BORSAND: Okay. Hi, your Honor, this
`is Steve Borsand. Thank you. I'll try to give a
`brief background here to help understand our
`position.
` As I think your Honors are aware, the patents at
`issue have a long litigation history that has
`generated a large amount of evidence that we submit
`show that the claims of the patents are not obvious.
`And most of this evidence has been produced and known
`to petitioners long before they filed the petitions.
` And, you know, from our perspective we're
`concerned about this form being used in the way where
`we limit the ability for this evidence to be
`considered. You know, the petitioners, not
`surprisingly, you know, want to focus the inquiry on,
`you know, looking at their alleged prior art
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`
`www hendersonlegalservices.com
`
`
`
`Page 9 of 63
`
`
`
`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
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`references in a vacuum and determining whether a
`particular reference shows a particular claim
`element.
` But they're asserting obviousness here, as we
`know, not anticipation. So with respect to that,
`issue whether it was obvious to put together the
`claim combination, the mindset of one of ordinary
`skill in the art at the relevant time frame, as well
`as real world evidence regarding what actually
`happened are highly relevant, but not dispositive.
` And we have from these cases evidence that
`shows, from our view, that the claim combination was
`not only not obvious in light of all sorts of all
`alleged art, including the art being asserted here in
`these proceedings, but actually falls into special --
`at least some of these fall into a special category
`of inventions that really had a huge impact on an
`industry.
` So part of this understanding, why we have all
`this discovery, it's important to understand a little
`bit of the background.
` These inventions first became commercially
`available from TT, my company, in the fall of 2000
`when we launched a new order entry tool that was
`called Empty Trader. Prior to that there was no such
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`
`www hendersonlegalservices.com
`
`
`
`Page 10 of 63
`
`
`
`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
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`tool out there on the market. And the tool was much
`different than what was on the market. And it turned
`out that this product became a huge success, both for
`our company -- and got all sorts of acclaim from the
`industry and was widely copied and praised. And it
`proved to have a big benefit in the industry. And
`even 16 years later, today, it's still on the upswing
`and uses, which is pretty amazing considering we're
`in this day and age of software where things
`oftentimes get passed up pretty quickly.
` Since the first Brumfield patents issue in 2004,
`which I believe are the patents in the 161 and 182
`proceedings, many defendants and others coordinated
`in the industry, you know, to unearth a very large
`amount of discovery, documents from many, many third
`parties, many depositions. I believe it's over a
`hundred. And, again, we think what came out of that
`actually proves the revolutionary nature of the
`inventions and not obviousness, both in terms of
`directly, in terms of the state of mind of the one of
`skill in art at the time and in terms of secondary
`considerations.
` And that evidence -- there's no way on this call
`I can do it justice with a complete summary. I mean,
`I could, you know, just point to a few examples. You
`
`202-220-4158
`
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`
`www hendersonlegalservices.com
`
`
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`Page 11 of 63
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`
`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
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`know, there's third-party witnesses that have no
`involvement directly with these cases. Examples
`would be Messrs. Martin and Zellinger who testified
`to things like initial skepticism, the benefits of
`the invention, copying.
` There was also testimony from people with skill
`levels way above one of ordinary skill in the art
`that gave relevant testimony. Just one example would
`be Mr. Garrow from one of TT's archrival competitors
`in the early '90s and 2000s who said that the
`combination of the invention was not obvious.
` Another category would be documents that were
`produced by parties in litigation. Examples are on a
`a list that we gave documents produced by competitors
`of our eSpeed and CQG that show copying. Documents
`produced by another party named GL Trade that relate
`to copies and failure of others, also praising the
`invention.
` And related to that, you know, based on our
`experience in these cases -- and we've settled now
`with over 30 companies, not all based on litigation,
`some amicable licenses -- our experience has shown
`that it's inevitable that the parties involved who
`have been authoring these tools in competition with
`us have their own evidence supporting not obviousness
`
`202-220-4158
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`
`www hendersonlegalservices.com
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`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
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`because they have -- there's reasons why they
`incorporated the accused tool that embodies the
`invention in their products. And these products are
`mission-critical products that the decision to
`implement them is not made casually. It's always
`backed up with a significant paper trail and with
`people having knowledge of the reasons why.
` So all the evidence that we're talking about has
`been available and considered by various courts, some
`portion of it was considered by the patent office,
`actually in some of the reexaminations, and obviously
`it's been considered by the various defendants and
`licensees we've had over the last ten years. And,
`indeed, in the latest trial we had in early 2015 CKG,
`who had full knowledge of the evidence, did not even
`attempt to mount a prior art invalidity defense.
` So we believe this evidence should be considered
`by the Board in these proceedings and it would be
`prejudicial to TT if somehow we couldn't present it.
`And we've raised this concern with Petitioners of how
`can we come up with the plan that would permit the
`evidence to be used in the proceedings in a way that
`works within the streamline nature of the
`proceedings, but would also not prejudice TT.
` And over the last couple of months, TT -- we've
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`CBM2015-00161; CBM2015-00172; CBM2015-00179; CBM2015-00181; CBM2015-00182; CBM2016-00009
`Conference Call
`May 11, 2016
`
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`been working very hard to go through all this
`evidence and come up with a plan. We've made a
`proposal to the Petitioners with very specific cites
`that we believe is a significant compromise, and
`frankly, from my perspective, still runs the risk of
`being prejudicial to TT.
` And part of that proposal is limiting -- where
`we would limit direct reliance on prior testimony to
`less than ten witnesses out of a group of well over
`65 and deal with just around 30 documents that were
`produced in the ordinary course of business from
`these competitors out of the millions of documents.
` And to date the Petitioners have not been
`receptive. And so I think that's pretty much the
`background Mr. Goldberg wanted me to give, and
`Mr. Goldberg was going to spell out in more detail on
`the relief we're seeking.
` MR. GOLDBERG: As Mr. Borsand explained,
`you know, we've been dealing with a huge amount of
`evidence from the past proceedings. One option to
`bring all that evidence in would be to seek subpoenas
`of everyone who testified in those cases to
`reauthenticate all the documents and repeat all their
`testimony.
` That can actually work to TT's advantage because
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`202-220-4158
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`Conference Call
`May 11, 2016
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`we might even be able to get better testimony from
`the witnesses than we already have. But recognizing
`the cost of all parties in pursuing that option, TT
`would be willing to accept a compromise in which some
`of the noncontroversial old evidence can be reused.
` Now, Petitioners in our discussions and e-mails
`have hinted a little bit that they might be willing
`to go along with a compromise for certain evidence,
`but they've been unwilling to give us the certainty
`we need to feel confident in not pursuing the
`subpoena option.
` So what we're asking the Board to do is give us
`that certainty by an unlimited way waiving certain
`Federal Rules of Evidence for these proceedings.
`Although Rule 42.62(a) dictates that the Federal
`Rules of Evidence typically apply in these
`proceedings, Rule 42.5(b) provides that the Board may
`waive or suspend a requirement of parts 141 and 42
`and may place conditions on the waiver or suspension.
` So what we're looking to do is for Federal Rule
`of Evidence 901, authentication, and Federal Rule of
`Evidence 802, that's hearsay, just get a limited
`waiver so that we can essentially just bring the
`material in here that's noncontroversial.
` So for -- to be specific for Federal Rule of
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`202-220-4158
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`
`www hendersonlegalservices.com
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`May 11, 2016
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`Evidence 901 that deals with authentication we're
`asking for a waiver only to the extent that either
`party in these proceedings will be able to directly
`rely on it as opposed to only by an expert
`documentary evidence without authenticating such
`evidence.
` If the evidence was, one, produced by a party
`to -- in a previous litigation as opposed to a third
`party from its own records in the previous
`litigation; two, admitted as a trial exhibit in the
`previous litigation; and, three, not subject to any
`dispute concerning authenticity in the prior
`litigation, this would allow TT to bring in, for
`example, eSpeed e-mails showing eSpeed's copying of
`TT's MD trader product that embodied the claims of
`the 304, 132, and 411 patents.
` E-mails, which came from eSpeed's records were
`admitted in the eSpeed trial, and not even eSpeed
`questioned their authenticity. So we think it would
`be a waste of everyone's resources to require Trading
`Technologies to subpoena someone from eSpeed to
`testify to the authenticity of these e-mails. The
`testimony would literally just be, for example, yes,
`that's an e-mail I sent. And since the scope of
`cross-exam is limited to that of direct, the only
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`question petitioners would be able to ask is, Did you
`send that e-mail, to which the response would
`undoubtedly be a repetition of the answers from just
`a minute ago, Yes.
` So all that said, TT requests that the Board
`waive Federal Rule of Evidence 901 related to
`authentication in a limited way specified in our
`e-mail to avoid such a needless waste of resources.
` At this point I can go on and explain FRE802,
`the hearsay issue, too or I can pause for questions,
`your Honor.
` JUDGE MEDLEY: Please explain the FRE802
`issue also.
` MR. GOLDBERG: Will do. So for FRE802
`we're asking that the Board waive the rule in these
`proceedings such that either party can directly rely
`on, again, as opposed to only relying on it by an
`expert, sworn testimony from other proceedings
`without preparing a new declaration for these
`proceedings so long as the opposing party has the
`opportunity to depose the testifying individual if it
`desires such a deposition.
` This would allow Trading Technologies to bring,
`for example, testimony of Mr. Garrow who, as
`Mr. Borsand pointed out, is an archrival competitor
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`of TT, and he said the combination of the invention
`in the 304 and 132 patents was not obvious.
` So, again here, we think it would be a waste of
`everyone's resources to require Trading Technologies
`to subpoena him just to repeat this testimony. The
`goal of the hearsay rule is to ensure an opposing
`party can question the witness and what we're
`proposing ensures that.
` TT would only be able to directly rely on the
`sworn testimony from other proceedings without
`preparing a new declaration for these proceedings.
`The petitioners have the opportunity to depose the
`testifying individual if they so desire.
` Now, we know this is a very different situation
`from the Kawashima issue that we've discussed with
`your Honors in the past. Petitioners relied on the
`Kawashima testimony for another proceeding, but
`they've made it clear that Trading Technologies will
`not able to depose Kawashima if it is in a location
`in Japan. And, in fact, that would make it possible
`for the Board to exclude that testimony now if it
`wanted to, which would moot most of the issues on
`this call.
` In contrast, Trading Technologies only wants to
`be able to rely on testimony from other proceedings
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`if petitioners have the opportunity to depose the
`testifying individuals. So for those reasons Trading
`Technologies is requesting that the Board waive
`Federal Rule of Evidence 802 in a limited way as
`specified in our e-mails to avoid a needless waste of
`resources.
` JUDGE MEDLEY: Okay. Is that all you have
`to say on these first few issues?
` MR. BORSAND: Your Honor, this is
`Steve Borsand. Can I have one quick thing. What
`we're trying to do in our compromise, and I think we
`would try to do this no matter what, is we have been
`taking people -- if we're going to -- if we can get
`this temporary relief, we're going to cite to
`testimony of someone, we're trying to pick people who
`have been already been deposed.
` So, you know, when the Petitioners decide if
`they want to depose that person, they will also have
`the benefit of the previous deposition as well to
`give them guidance on that. So we're trying as best
`as we can to stick to that in prioritizing who we
`would cite to.
` JUDGE MEDLEY: Okay. Petitioners, is there
`somebody who can speak for the Petitioners?
` MS. GORDON: Yes, your Honor. This is
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`Lori Gordon from Sterne Kessler. I'll be speaking on
`behalf of the Petitioners today.
` JUDGE MEDLEY: Okay.
` MS. GORDON: First, I'd like to just state
`that we disagree with the testimony on the substance
`of the proceedings provided today by Mr. Borsand and
`Mr. Goldberg, but we're not here today to discuss the
`merits of this case. We're here to discuss their
`specific relief requested in their e-mail.
` And as we explained to Patent Owner multiple
`times, we are aware of no rule that prevents them
`from citing to whatever evidence they want in their
`Patent Owner response. And the rules provide that
`should they cite to evidence, we have the ability to
`assess the evidence based on how they use it in their
`response and object accordingly. That's what the
`rules were set up to provide both parties.
` Now, Patent Owner today is asking for an
`extraordinary relief for the Board to waive the
`Federal Rules of Evidence for both authentication and
`hearsay. And the bottom line is this request is just
`premature.
` We have indicated to Patent Owner that we are
`also interested in managing costs, but we also have
`to have the ability to adequately defend our interest
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`in these proceedings. We have no idea how the Patent
`Owner intends to use this evidence and how they will
`actually cite to it both in response and in their
`declaration. So we have no -- we don't have the
`ability right now to assess whether a waiver is
`appropriate because we just don't have their papers
`in front of us.
` Now, Patent Owner referred to prior litigation
`and they tied a relief into -- I think they talked
`about documents produced in prior litigation used as
`trial exhibits. So I think the important thing for
`the panel to realize is that Petitioners here were
`not parties to those prior litigations. We have not
`seen the evidence they are referring to to support
`the authenticity of the document. And we, frankly,
`weren't party to any of the compromises that may have
`been made between the parties related to authenticity
`of specific documents as we know have been when
`you're preparing for trial.
` We were not aware of this evidence beforehand,
`and I think Mr. Borsand's statements to that effect
`were an exaggeration. And we also would like to
`highlight this is certainly not a compromise. This
`is a very one-sided request. And one -- a piece of
`evidence from the Board to consider is we asked
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`Patent Owner specifically for evidence from these
`prior litigations regarding the authenticity of
`certain documents, the TSC document, from the prior
`litigations in response to an objection they made.
`And this is the response we got from Patent Owner on
`our request for authenticity documents in prior
`litigation.
` They said, "Patent Owners are not presently
`aware of evidence it has that is inconsistent with
`TT's statement in its objections that Petitioners
`have submitted no evidence to authenticate Exhibit
`1003 and sufficient evidence for Exhibit 1004 as set
`forth below making those inadmissible under FRE901,"
`in other words, playing games with their objections.
` When we asked for this evidence, they said they
`wouldn't provide it. Yet when they're facing the
`possibility of objections to their own evidence, they
`seek blanket waivers in advance from even submitting
`the evidence in their papers. This is just the sort
`of gamesmanship that the rules seek to avoid.
` Now, we also note from the list of exhibits that
`Patent Owner provides, they provide lengthy trial
`exhibits that relate to -- I think Mr. Borsand and
`Mr. Goldberg said alleged copying from eSpeed.
` First of all, we don't represent eSpeed. ESpeed
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`is not a party. So we have no evidence related to
`what the eSpeed product actually does. We also note
`that they have provided only plaintiff's exhibits.
`They haven't provided us with defendant's exhibits
`that contradict or counter their proposals, and we
`don't have access to that evidence because we are not
`a party and we don't have control of that evidence.
`So there's no way for us to efficiency obtain that
`evidence that contradicts their plaintiff's exhibits.
` Finally, Patent Owner once again raised the
`Kawashima deposition transcript and appear to now be
`raising the possibility yet again of a motion to
`exclude. But what the Patent Owner neglects to
`inform the Board time and time again related to this
`deposition transcript is that they did indeed have a
`chance to depose Mr. Kawashima.
` Mr. Borsand, himself, was there at that
`deposition. And they also neglected to remind the
`Board that there are hearsay exceptions that would
`apply specifically to the Kawashima deposition
`transcript.
` So we ask the Board to deny this extraordinary
`relief requested by Patent Owner and to follow the
`rules that have been set forth carefully by the Board
`in light of the guidance of Congress that permitted
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`the Board to set forth those rules of.
` JUDGE MEDLEY: All right.
` Actually, now I'd like to hear about issue
`number three, Mr. Goldberg. Just a minute.
` Do any of the other petitioners have anything to
`say on this issue?
` Thank you, Ms. Gordon.
` Number three, item number three, Mr. Goldberg.
` MR. GOLDBERG: Number three is actually
`closely tied to numbers one and two and could
`actually go in two slightly different directions
`depending on how the Board wants to handle the waiver
`issues.
` I'll first just note that we don't get these
`waivers, then we are going to be wanting to get
`additional discovery to, as I mentioned earlier,
`subpoena all of the individuals whose testimony we're
`seeking to rely on and also 30(b)6 type subpoenas of
`the companies whose documents we are trying to rely
`on to get that authentication. And given that they
`already have that evidence and it would merely be a
`matter of getting somebody to say yes, that is what I
`said or yes, that is what it says it is, we think we
`would meet the requirements to get that additional
`discovery.
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` Now, we don't think we need to go there. We
`think that the waiver approach is very reasonable.
`And Ms. Gordon noted our objections to the TSC based
`solely on the authentication matter. That is an
`objection that we would waive at this point given the
`waivers that we are proposing.
` Now, as to -- assuming that the Board would go
`with us on these waivers, which I think would make
`these proceedings flow a lot better and really be the
`only way to proceed without depriving Patent Owner of
`due process, what we're looking to do is actually
`seek additional discovery on Petitioners' behalf
`preemptively to enable them to depose any of the
`individuals that they want to depose who we rely on
`previous testimony for. This is actually something
`that the Board --
` JUDGE MEDLEY: Have you asked any of these
`individuals whether they would be willing to be
`deposed?
` MR. GOLDBERG: For individuals that are
`willing to put in testimony that, you know, are
`employed by Trading Technologies, more often than
`not, we're just goi
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