Paper No. ______
`Filed: November 1, 2017
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`
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`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 CBM2016-00054
`Patent No. 7,693,768
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`
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`PATENT OWNER’S MOTION TO MAINTAIN CONFIDENTIAL
`INFORMATION UNDER SEAL PENDING DISPOSITION OF APPEAL
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`Filed: November 1, 2017
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`
`
`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 CBM2016-00054
`Patent No. 7,693,768
`
`
`
`
`PATENT OWNER’S MOTION TO MAINTAIN CONFIDENTIAL
`INFORMATION UNDER SEAL PENDING DISPOSITION OF APPEAL
`
`
`
`
`
`
`
`
`
`
`
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`
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`I.
`
`Case CBM2016-00054
`Patent No. 7,693,768
`
`Statement of Relief Requested
`Pursuant to this Board’s authorization on October 23, 2017, Trading
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`Technologies International, Inc. (“TT” or “Patent Owner”), respectfully requests
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`that all sealed documents in CBM2016-00054 be preserved in non-public form
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`pending disposition of any appeals. Moreover, within 10 days of the disposition of
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`all appeals in this matter, Patent Owner respectfully requests that all confidential
`
`information filed by the parties be expunged from the record pursuant to Rule
`
`42.56 and not be made public.
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`Patent Owner has conferred with Petitioners on both requests and Petitioners
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`do not oppose.
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`II. Reasons Why Requested Relief Should Be Granted
`A. The Record Should be Preserved Pending Appeal So the Federal
`Circuit Has Full Access to the Record
`The Federal Rules of Appellate Procedure and the Federal Circuit Rules
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`require that the record be retained by the Board pending appeal. Specifically,
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`Federal Circuit Rule 17(a) states that “[t]he agency must retain the record.”
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`Federal Circuit Rule 17(d), titled “Access of Parties and Counsel to Original
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`Record” also requires that the parties and their counsel have access to both the
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`sealed and unsealed portions of the record “[w]hen a petition for review or notice
`
`of appeal is filed.” Patent Owner plans to file a timely Notice of Appeal from the
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`Board’s Final Written Decision (Paper 61).
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`
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`If the record is not preserved in its entirety, including any sealed portions,
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`Case CBM2016-00054
`Patent No. 7,693,768
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`
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`and an appeal is taken, the Federal Circuit will not be able to fully consider the
`
`issues, which would cause prejudice to Patent Owner and violate the appellate
`
`rules. Accordingly, TT requests that all sealed documents be preserved in non-
`
`public form pending appeal.
`
`B.
`
`Subsequent to the Disposition of Appeal, Confidential
`Information Should be Expunged
`Additionally, Patent Owner respectfully requests that subsequent to the
`
`dispositions of all appeals, all sealed confidential information filed on the CBM
`
`docket be expunged for the reasons set forth below.
`
`In connection with its Patent Owner’s Response, TT filed a Motion to Seal.
`
`(Paper 23). This motion covered the confidential version of the Patent Owner’s
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`Response (Paper 20), confidential versions of Exhibits 2172 (Declaration of J.
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`Knobloch) and 2169 (Declaration of C. Thomas), and thirty-seven exhibits to the
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`Declaration of C. Thomas (Exhibits 2143, 2144, 2154, 2224, 2225, 2232, 2247,
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`2270, 2286, 2294, 2295, 2501, 2502, 2503, 2504, 2506, 2507, 2508, 2509, 2510,
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`2511, 2512, 2513, 2514, 2515, 2516, 2517, 2518, 2520, 2521, 2522, 2524, 2525,
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`2526, 2527, 2529, and 2530). TT identified that the sealed papers contain sensitive
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`business information that would not otherwise be published or made available to
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`the public. Additionally, TT made all of the non-confidential information
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`publically available in non-confidential versions. (Paper 23, at 6-7).
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`
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`- 2 -
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`
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`In connection with their Reply, Petitioners also filed a Motion to Seal (Paper
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`Case CBM2016-00054
`Patent No. 7,693,768
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`
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`39). This motion covered two exhibits (1063 and 1064)—the deposition
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`transcripts of Christopher H. Thomas—which were marked confidential by TT
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`pursuant to the Protective Order. (Paper 39, at 1). Petitioners represented that, to
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`the best of their knowledge, the documents had not been made publically available.
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`(Id.).
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`Finally, Patent Owner filed a second Motion to Seal in connection with its
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`Demonstratives. (Paper 56). Specifically, TT requested that its Demonstratives
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`(Exhibit 2359) be sealed because they contained sensitive business information
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`that would not otherwise be published or made available to the public. TT filed a
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`public version of its Demonstratives. (Paper 56, at 1).
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`For the same reasons set forth in the parties’ motions to seal, namely that the
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`sealed information “contain[s] information identified . . . as sensitive, non-public
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`information, that a business would not make public,” (Paper 23, at 0; see also
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`Paper 39, at 1; Paper 56, at 1), all the information filed under seal in this matter
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`should be expunged from the record within 10 days of the disposition of all
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`appeals. Expunging the sealed information will avoid the prejudice to the parties
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`that would be caused by public disclosure of their sealed information.
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`In particular, the confidential materials covered by Patent Owner’s first
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`motion to seal (Paper 23) include TT’s internal financial information relating to the
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`- 3 -
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`
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`amount of money derived from royalty and settlement payments, third-party
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`Case CBM2016-00054
`Patent No. 7,693,768
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`business strategy information and third-party admissions/statements, and
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`discussions of Petitioners’ own confidential information obtained in a related
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`district court proceeding. (Paper 23, at 3-6). The materials covered by Petitioner’s
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`motion to seal (Paper 39) include the deposition transcripts of Christopher H.
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`Thomas, which were marked confidential by TT pursuant to the Protective Order.
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`(Paper 39, at 1). Finally, the confidential materials covered by Patent Owner’s
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`second motion to seal (Paper 56) include information related to internal technical
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`specifications that TT obtained in a related district court proceeding pursuant to a
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`protective order. (Paper 56, at 3-4). With the exception of portions of Exhibits
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`2169, 2247, 1063, and 1064, (see Paper 61, at 57, 68, 70-71), none of the materials
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`filed under seal were relied on in the Final Written Decision. (See generally Paper
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`61).
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`III. Conclusion
`Patent Owner respectfully requests that the entire CBM record be preserved
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`in its present form pending appeal, including preservation of documents filed under
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`seal in non-public form.
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`Within 10 days after disposition of any appeals, Patent Owner requests that
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`the sealed materials be expunged from the CBM docket.
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`- 4 -
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`Case CBM2016-00054
`Patent No. 7,693,768
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`Respectfully submitted,
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`Dated: November 1, 2017
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`By: /Jennifer M. Kurcz/
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`
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`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`BAKER & HOSTETLER LLP
`191 North Wacker Drive
`Suite 3100
`Chicago, IL 60606-1901
`312-416-6200
`jkurcz@bakerlaw.com
`
`Counsel for Patent Owner
`Trading Technologies International, Inc.
`
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`- 5 -
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`
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`Case CBM2016-00054
`Patent No. 7,693,768
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on November 1, 2017, a copy of the
`
`
`
`
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`foregoing PATENT OWNER’S MOTION TO MAINTAIN CONFIDENTIAL
`
`INFORMATION UNDER SEAL PENDING DISPOSITION OF APPEAL
`
`was served via e-mail on the following:
`
`Robert E. Sokohl
`Lori A. Gordon
`Richard M. Bemben
`STERNE KESSLER GOLDSTEIN & FOX PLLC
`1100 New York Avenue, NW
`Washington, DC 20005
`202-371-2600
`Rsokohl-ptab@skgf.com
`Lgordon-ptab@skgf.com
`Rbemben-ptab@skgf.com
`PTAB@skgf.com
`
`John C. Phillips
`FISH & RICHARDSON, PC
`12390 El Camino Real
`San Diego, CA 92130
`cbm41919-0008CP1@fr.com
`
`
`
`
`/Jennifer M. Kurcz/
`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`BAKER & HOSTETLER LLP
`191 North Wacker Drive
`Suite 3100
`Chicago, IL 60606-1901
`312-416-6200
`jkurcz@bakerlaw.com
`Counsel for Patent Owner
`Trading Technologies International, Inc.
`
`
`
`
`
`
`
`
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