`
`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
`_________
`
`CBM2016-00087
`Patent No. 7,412,416
`___________________
`
`
`PETITIONERS’ OBJECTIONS TO
`PATENT OWNER’S EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313–1450
`
`
`
`
`
`
`Petitioners’ Objections to PO’s Evidence
`CBM2016-00087 / Patent No. 7,412,416
`IBG LLC, Interactive Brokers LLC, TradeStation Group, Inc., and
`
`TradeStation Securities, Inc. (collectively, “Petitioners”) object under 37 C.F.R.
`
`§ 42.64 to the admissibility of the following evidence Trading Technologies
`
`International, Inc. (“TT” or “Patent Owner”) filed and served on February 22,
`
`2017. Petitioners ask the Patent Trial and Appeal Board to deny the admission and
`
`consideration of the following documents on the following bases:
`
`TT Exhibit No.
`
`Description
`
`Exhibit 2007 Meyers, Brad A. “A Brief History of Human-Computer
`
`Interaction Technology.” Interactions 5.2 (1998): 44-54
`
`Exhibit 2052
`
`University of Washington Web Page Print out, Human-
`
`Computer Interaction Degree Option
`
`Exhibit 2053
`
`Rochester Institute of Technology Web Page Print out, Masters
`
`in Human Computer Interaction
`
`Exhibit 2054
`
`Rensselaer Polytechnic Institute Web Page Print out, M.S. in
`
`Human-Computer Interaction
`
`Exhibit 2055
`
`Tufts University Web Page Print out, Human-Computer
`
`Interaction Certificate Program
`
`Exhibit 2056
`
`Georgia Institute of Technology Web Page Print out, Human-
`
`Computer Interaction Master’s Program
`
`
`
`- 1 -
`
`
`
`Petitioners’ Objections to PO’s Evidence
`CBM2016-00087 / Patent No. 7,412,416
`DePaul University Web Page Print out, Master of Science
`
`Exhibit 2057
`
`Human-Computer Interaction
`
`Exhibit 2058
`
`Carnegie Mellon University Web Page Print out, Masters of
`
`Human-Computer Interaction
`
`Exhibit 2119
`
`TradeStation Group, Inc., et al. v. Trading Techs. Int’l, Inc.,
`
`Case No. CBM2015-000161, Paper 002, Petition for Covered
`
`Business Method Review U.S. Patent No. 6,766,304 (Jul. 20,
`
`2016)
`
`Exhibit 2121
`
`Class 705, Data Processing: Financial, Business Practice,
`
`Management, or Cost/Price Determination, Classification
`
`Definitions (January 2012 ): 1-53
`
`Exhibit 2122
`
`TradeStation Group, Inc., et al. v. Trading Techs. Int’l, Inc.,
`
`Case No. CBM2015-000161, Paper 029, Institution Decision
`
`(Jan. 27, 2016)
`
`Exhibit 2126
`
`Senate Congressional Record, S5402-S5443 (Sept. 8, 2011)
`
`Exhibit 2127
`
`Senate Congressional Record, S1360-S1394 (Mar. 8, 2011)
`
`Exhibit 2165
`
`Deposition Transcript of Kendyl A. Roman, dated May 3, 2016
`
`Exhibit 2166
`
`Deposition Transcript of Kendyl A. Roman, dated May 5, 2016
`
`Exhibit 2168
`
`Declaration of Eric Gould-Bear, with Exhibits 1-3, 2/22/2017
`
`
`
`- 2 -
`
`
`
`Petitioners’ Objections to PO’s Evidence
`CBM2016-00087 / Patent No. 7,412,416
`Declaration of Christopher Thomas, 2/21/2017
`
`Exhibit 2169
`
`Exhibit 2174
`
`Declaration of Dan Olsen, 2/15/2017
`
`Exhibit 2201
`
`Christopher Thomas CV
`
`Exhibit 2204 Microsoft DNA Case Study
`
`Exhibit 2206
`
`Excerpts from Interactive Brokers Group, Inc. Form 10-K
`
`Statement, IBG_00000412-421
`
`Exhibit 2207
`
`Excerpts from TradeStation Group, Inc. Form 10-K Statement,
`
`TS0005177-88
`
`Exhibit 2209
`
`Globex User Guide June 1995
`
`Exhibit 2297
`
`National Aeronautics and Space Administration Web Page Print
`
`out, Human Computer Interaction Group
`
`Exhibit 2412
`
`Trading Techs. Int’l. Inc., v. CQG, Inc., et. al., Case No. 16-
`
`1616, Dkt. 22 Opening Brief of Appellants (April 25, 2016)
`
`Exhibit 2413
`
`Trading Techs. Int’l. Inc., v. CQG, Inc., et. al., Case No. 16-
`
`1616, Dkt. 42 Reply Brief of Appellants (August 24, 2016)
`
`Exhibit 2539
`
`U.S. Patent No. 6,772,132 B1
`
`
`
`FRE ARTICLE IV – RELEVANCE AND ITS LIMITS
`
`Petitioners object to TT Exhibit Nos. 2007, 2052-2058, 2119, 2121, 2122,
`
`2126, 2127, 2165, 2166, 2168, 2169, 2174, 2204, 2206, 2207, 2209, 2297, 2412,
`
`
`
`- 3 -
`
`
`
`Petitioners’ Objections to PO’s Evidence
`CBM2016-00087 / Patent No. 7,412,416
`2413, and 2539 as irrelevant under 401 and thus inadmissible under FRE 402
`
`because cited portions are not relevant to any issue remaining in this proceeding,
`
`such as patentability of the subject matter, broadest reasonable interpretation of the
`
`claims, or obviousness of the claims in view of the prior art, or because any
`
`probative value associated therewith is substantially outweighed by a danger of
`
`unfair prejudice, confusing the issues, or a waste of time under FRE 403.
`
`FRE ARTICLE VI – WITNESSES
`
`Petitioners object to TT Exhibit Nos. 2168 for lack of foundation. Patent
`
`Owner has not shown that the declarant has personal knowledge of the subject
`
`matter of the testimony as required by FRE 602.
`
`FRE ARTICLE VII – OPINIONS AND EXPERT TESTIMONY
`
`Petitioners object to TT Exhibit Nos. 2168, 2169, and 2174 to the extent any
`
`portion thereof offers opinion under FRE 701–703. The declarant is not qualified
`
`to offer expert testimony, the testimony is not based on sufficient facts or data, nor
`
`on scientific, technical, or other specialized knowledge, and there is no indication
`
`that declarant has the expertise necessary to apply the law to the facts as would be
`
`necessary to opine under FRE 702. Further, there is no indication that the declarant
`
`based those opinions on facts or data upon which an expert in the relevant field
`
`would reasonably rely. FRE 703. Further, the declarant’s testimony falls outside
`
`acceptable lay opinion testimony under FRE 701. A party may not evade the expert
`
`
`
`- 4 -
`
`
`
`Petitioners’ Objections to PO’s Evidence
`CBM2016-00087 / Patent No. 7,412,416
`witness requirements of FRE 702 by simply designating the testimony as lay
`
`testimony under FRE 701.
`
`FRE ARTICLE VIII – HEARSAY
`
`To the extent Patent Owner relies on the contents of TT Exhibit Nos. 2007,
`
`2052-2058, 2119, 2121, 2122, 2165, 2166, 2168, 2169, 2174, 2204, 2206, 2207,
`
`2209, 2297, 2412, 2413, and 2539 for the truth of the matter asserted, Petitioners
`
`object to such contents as inadmissible hearsay under FRE 801 and 802 that does
`
`not fall under any exceptions, including those of FRE 803, 804, 805 or 807.
`
`FRE ARTICLE IX – AUTHENTICATION AND IDENTIFICATION
`
`Petitioners object to TT Exhibit Nos. 2007, 2052-2058, 2119, 2121, 2122,
`
`2165, 2166, 2204, 2206, 2207, 2209, 2297, 2412, 2413, and 2539 as not properly
`
`authenticated under FRE 901 because Patent Owner has not presented sufficient
`
`evidence to demonstrate that these documents are authentic nor that the documents
`
`are self-authenticating under FRE 902.
`
`CITING EXHIBITS NOT SERVED
`
`Petitioners object to TT Exhibit Nos. 2007, 2119, 2165, 2166, 2206, 2207,
`
`2412, and 2413 as citing exhibits not served with the documents as required by 37
`
`C.F.R. § 42.51(b)(1)(i).
`
`
`
`
`
`
`
`
`
`
`- 5 -
`
`
`
`
`
`
`
`Date: March 1, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`
`
`Petitioners’ Objections to PO’s Evidence
`CBM2016-00087 / Patent No. 7,412,416
`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
`
`
`- 6 -
`
`
`
`
`
`Petitioners’ Objections to PO’s Evidence
`CBM2016-00087 / Patent No. 7,412,416
`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that the foregoing PETITIONERS’
`
`OBJECTIONS TO PATENT OWNER’S EVIDENCE PURSUANT TO 37
`
`C.F.R. § 42.64(b)(1) was served electronically via e–mail on March 1, 2017, in its
`
`entirety on Attorneys for Patent Owner:
`
`Steven F. Borsand, Jay Q. Knobloch
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`tt–patent–cbm@tradingtechnologies.com;
`jay.knobloch@tradingtechnologies.com
`
`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
`
`
`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: March 1, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`
`
`
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