Paper No.
`Filed: November 1, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`IBG LLC,
`INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`Petitioner,
`v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_________________
`Case CBM2016-00054
`U.S. Patent 7,693,768 B2
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`Patent Owner’s Objections to
`Evidence Pursuant to 37 C.F.R. § 42.64
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`Filed: November 1, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`
`
`
`
`
`
`
`
`IBG LLC,
`INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`Petitioner,
`v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_________________
`Case CBM2016-00054
`U.S. Patent 7,693,768 B2
`
`
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`Patent Owner’s Objections to
`Evidence Pursuant to 37 C.F.R. § 42.64
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`
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner objects to the following
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`Case CBM2016-00054
`U.S. Patent 7,693,768 B2
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`
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`of Petitioners’ Exhibits:
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`• 1007 (Expert Declaration of Kendyl A. Roman);
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`• 1010 (U.S. Patent No. 5,077,665 to Silverman);
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`• 1011 (U.S. Patent No. 5,297,031 to Gutterman);
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`• 1012 (WO 90/11571 to Belden);
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`• 1015 (U.S. Patent No. 5,960,411 to Hartman);
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`• 1016 (“Futures/Option Purchasing System Trading Terminal
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`Operation Guide,” Tokyo Stock Exchange);
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`• 1017 (Certified Translation of “System for Buying and Selling
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`Futures and Options Transaction Terminal Operational Guidelines”);
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`• 1018 (Certificate of Translation for “System for Buying and Selling
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`Futures and Options Transaction Terminal Operational Guidelines”);
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`• 1019 (Deposition Transcript of Atsushi Kawashima, Trading Techs.
`
`Int’l, Inc., v. eSPEED, Inc., Case No. 04-cv-5312, United States
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`District Court, Northern District of Illinois, Eastern Division, dated
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`November 21, 2005);
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`1
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`Case CBM2016-00054
`U.S. Patent 7,693,768 B2
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`• 1020 (Weiss, “After the Trade is Made”);
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`• 1021 (Deel, “The Strategic Electronic Day Trader”);
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`• 1022 (Cooper, “About Face: The Essentials of User Interface
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`Design”);
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`• 1023 (Shneiderman, “Designing the User Interface: Strategies for
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`Effective Human-Computer Interaction”);
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`• 1024 (Microsoft Computer Dictionary, Fifth Edition, 2002);
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`• 1030 (U.S. Patent No. 6,408,282 to Buist);
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`• 1036 (Inside Macintosh, Promotional Edition);
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`• 1037 (Dictionary of Computing (4th Ed, Oxford University Press,
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`1996));
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`• 1041 (Merriam-Webster’s Collegiate Dictionary, Tenth Edition,
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`1998);
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`• 1042 (Super Mario Brothers image);
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`• 1043 (Metal Warrior V1.6 source code); and
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`• 1044 (U.S. Patent No. 6,205,260 to Crinon).
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`2
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`Case CBM2016-00054
`U.S. Patent 7,693,768 B2
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`I.
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`OBJECTION TO PETITIONERS’ EXHIBIT 1007
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`Patent Owner objects to Exhibit 1007 because it contains unreliable
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`testimony under FRE 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
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`(1993). In particular, Mr. Román’s declaration includes numerous purported
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`“expert” opinions on matters about which Mr. Román is not qualified to offer such
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`“expert” testimony. Mr. Román has insufficient knowledge, skill, experience,
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`training, and education regarding trading and/or trading GUI design. Yet Mr.
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`Román repeatedly opines about the understanding of a person of ordinary skill in
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`the art in the relevant time period with respect to such subjects. See, e.g., ¶¶ 53,
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`57, 88-90, 93, 95, 105, 109, 110, 123, 125, 136, 140, 142, 144, 151, 162, 163, 165,
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`and 166.
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`II.
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`OBJECTION TO PETITIONERS’ EXHIBITS 1010-1012, 1015-1024,
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`1030, 1036, 1037, and 1041-1044
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`Patent Owner objects to Exhibits 1010-1012, 1015-1024, 1030, 1036, 1037,
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`and 1041-1044 to the extent that Petitioner relies on their contents for the truth of
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`the matters asserted therein. Exhibits 1010-1012, 1015-1024, 1030, 1036, 1037,
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`and 1041-1044 are inadmissible hearsay under FRE 801 and 802, and no
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`exception applies.
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`III.
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`OBJECTION TO PETITIONER EXHIBITS 1016-1018
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`3
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`Case CBM2016-00054
`U.S. Patent 7,693,768 B2
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`Petitioner has submitted no evidence to authenticate Exhibit 1016, and
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`deficient evidence for Exhibit 1017 as set forth below, making both inadmissible
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`under FRE 901.
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`Patent Owner also objects to Exhibit 1016-1018 under FRE 602. Petitioner
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`fails to provide a credible translation of TSE and fails to conform with the Board’s
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`rules for submitting translations of foreign language documents. In particular, 37
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`C.F.R. § 42.63(b) requires that “[w]hen a party relies on a document or is required
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`to produce a document in a language other than English, a translation of the
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`document into English and an affidavit attesting to the accuracy of the translation
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`must be filed with the document.” The record lacks such an affidavit under Rule
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`42.63(b) attesting to its accuracy because Mr. Cohen, on information and belief,
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`did not translate the Japanese language TSE into English, has not stated that he
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`reviewed or edited the English translation, thereby demonstrating his lack of
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`personal knowledge regarding the matter for which he is testifying. See FRE 602
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`(requiring personal knowledge to testify to a matter). Therefore, Exhibit 1018 is
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`noncompliant with 37 C.F.R. § 42.63(b). This makes Exhibits 1016 and 1017
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`inadmissible under 37 C.F.R. § 42.61(a) (“Evidence that is not taken, sought, or
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`filed in accordance with this subpart is not admissible.”). Furthermore, Exhibit
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`1017 is an inherently subjective translation from Japanese to English and
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`prejudicial and misleading under FRE 403.
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`4
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`
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`Patent Owner further objects to Exhibit 1016 under FRE 403 and FRE
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`Case CBM2016-00054
`U.S. Patent 7,693,768 B2
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`1003. The copy of the Japanese language TSE document (Exhibit 1016) is illegible
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`in many places (e.g., 54-63, 91-120, 137-143) and therefore cannot be used to
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`verify the accuracy of the translation.
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`Patent Owner further objects to Exhibit 1017 under FRE 403 and FRE 106.
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`Exhibit 1017 substitutes nearly verbatim Patent Owner’s own translation of the
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`TSE’s Chapter 7 for the inaccurate translation previously provided by Petitioner’s
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`counsel. Compare Ex. 1017, 91-120, with CBM2016-00009, Ex. 2020, Appx. E.
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`Despite having copied Patent Owner’s translation into Exhibit 1017, on pages 115-
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`116 (7-25 and 7-26), Petitioner omits two translator’s notes from Patent Owner’s
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`original translation. Exhibit 1017 is therefore incomplete in violation of FRE 106
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`and misleading and inadmissible under FRE 403.
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`Patent Owner further objects to Exhibits 1016 and 1017 as irrelevant under
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`FRE 401 and FRE 402. Petitioners assert that Exhibits 1016 and 1017 constitute
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`prior art under 35 U.S.C. § 102(b) (Pet. 11-12), but because Petitioners have
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`provided insufficient evidence to support a finding that Exhibits 1016 and 1017
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`were publically accessible, Petitioners’ Exhibits 1016 and 1017 lack relevance to
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`the proceeding.
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`5
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`Case CBM2016-00054
`U.S. Patent 7,693,768 B2
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`OBJECTION TO PETITIONERS’ EXHIBITS 1021, 1022, 1024, 1030,
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`IV.
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`1043, and 1044
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`Patent Owner objects to portions of Exhibits 1021, 1022, 1024, 1030, 1043,
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`and 1044 under FRE 401 and 402 as irrelevant, or in the alternative, under FRE
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`403 as a waste of time. Petitioner has not cited to the Exhibits 1021, 1024, and
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`1030. Petitioner has cited, but not relied on Exhibits 1022, 1043, and 1044.
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`Exhibits 1021, 1022, 1024, 1030, 1043, and 1044 are therefore irrelevant and a
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`waste of time.
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`V.
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`OBJECTION TO PETITIONERS’ EXHIBITS 1010, 1011, 1015, 1030,
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`and 1044
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`Petitioner relies on Exhibits 1010, 1011, 1015, 1030, and 1044 as disclosing
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`certain features of the claims of the ’768 patent. However, Exhibits 1010, 10011,
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`1015, 1030, and 1044 are irrelevant to the grounds instituted by the Board, and are
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`therefore inadmissible under FRE 401 and 402 because they lack a tendency to
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`make any fact at issue in this proceeding more or less probable. In the alternative,
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`Patent Owner objects to Exhibits 1010, 1011, 1015, 1030, and 1044 under FRE
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`403 as a waste of time.
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`6
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`Case CBM2016-00054
`U.S. Patent 7,693,768 B2
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`Respectfully submitted,
`
`By: /Rachel L. Emsley/
`Rachel L. Emsley, Backup Counsel
`Registration No. 63,558
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`
`
`Dated: November 1, 2016
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`7
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`Case CBM2016-00054
`U.S. Patent 7,693,768 B2
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`CERTIFICATE OF SERVICE
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`
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`The undersigned hereby certifies that a copy of the foregoing Patent
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`Owner’s Objections to Evidence Pursuant to 37 C.F.R. § 42.64 were served on
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`November 1, 2016, via email directed to counsel of record for the Petitioner at the
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`following:
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`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori A. Gordon
`lgordon-ptab@skgf.com
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`Richard M. Bemben
`rbemben-PTAB@skgf.com
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`John C. Phillips
`CBM41919-0013CP1@fr.com
`
`PTAB@skgf.com
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`
`Dated: November 1, 2016
`
`/Valencia Daniel/
`Valencia Daniel
`Litigation Legal Assistant
`
`Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP
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